Gujarat High Court
Ishwarbhai Somabhai Chaudhary vs State Of Gujarat on 3 March, 2020
Author: A. S. Supehia
Bench: A.S. Supehia
C/SCA/10692/2018 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10692 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 14421 of 2018
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 10692 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.S. SUPEHIA
==================================================
1 Whether Reporters of Local Papers may be allowed to NO see the judgment ?
2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy of the NO judgment ?
4 Whether this case involves a substantial question of law NO as to the interpretation of the Constitution of India or any order made thereunder ?
================================================== ISHWARBHAI SOMABHAI CHAUDHARY & 5 other(s) Versus STATE OF GUJARAT & 17 other(s) ================================================== Appearance:
MR DIGANT M POPAT(5385) for the Petitioner(s) No. 1,2,3,4,5,6 MR. DHAWAN JAYSWAL, AGP for the Respondent(s) No. 1,2,3,4,5,6 MR RB THAKOR(6743) for the Respondent(s) No. MR. JV PADHIYAR(6966) for the Respondent(s) No. 7 NOTICE SERVED BY DS(5) for the Respondent(s) No. 10,11,12,13,14,15,16,17,18,2,3,4,8,9 ================================================== CORAM: HONOURABLE MR.JUSTICE A.S. SUPEHIA Date : 03/03/2020 COMMON CAV JUDGMENT [1.0] Rule. Learned Assistant Government Pleader Mr. Dhawan Jayswal waives service of notice of Rule on behalf of the respondent-
State.Page 1 of 23 Downloaded on : Sun Jun 14 00:01:29 IST 2020 C/SCA/10692/2018 CAV JUDGMENT
[2.0] With the consent of the learned advocates appearing for the respective parties, the matter is taken up for final hearing.
[3.0] Since the issue raised in the writ petition is common, the same is decided by this common judgment and order.
[4.0] The facts are incorporated from Special Civil Application No. 14421 of 2018. The present petitions are directed against the order dated 28.04.2014 passed by the Deputy Collector in Appeal No. 1 of 2013, impugned order dated 28.12.2016 passed by the District Collector, Banaskantha in Appeal being B/Jamin-4/Appeal Case No. 72 of 2015, Chadotar, Taluka: Palanpur, District: Banaskantha and the order dated 11/24.04.2018 passed by the respondent-Special Secretary, Revenue Department, Ahmedabad (S.S.R.D.) in Revision Application No. MVV/Jaman/Banas/2/2017.
[5.0] The brief facts of the present writ petition are that the auction with regard to the various plots situated in Village Chadotar, Taluka Palanpur, District Banaskantha was conducted on 14.05.2012 under the supervision of the respondent-authorities. By the order dated 02.06.2012, the Taluka Development Officer, Palanpur (for short "the T.D.O.") sanctioned the auction in favour of the petitioners and other auction purchasers. Thereafter, it is the case of the petitioners that "sanad" was issued to the respective plot-holders under Rules 37, 43 and 52 of the Gujarat Land Revenue Rules, 1972 ("the Rules") and Page 2 of 23 Downloaded on : Sun Jun 14 00:01:29 IST 2020 C/SCA/10692/2018 CAV JUDGMENT accordingly the petitioners and the respective plot- holders were given the possession receipts. It appears that thereafter the plots No. 64, 66, 72 and 74 were further sold to Shri. Ishwarbhai Somabhai Chaudhari on 06.10.2012. Similarly, Plot Nos. 65, 67, 68, 69, 70, 71, 73, 79, 80 and 81 are sold to some third parties. Thereafter, one Laxmanji Harchandji Langoti-respondent No. 7 preferred an Appeal No. 1 of 2013 before the Deputy Collector, Palanpur, under Section 203 of the Gujarat Land Revenue Code, 1879 (the Code) for setting aside the aforesaid order dated 02.06.2012 passed by the T.D.O., Palanpur. By the impugned order dated 28.04.2014, the Deputy Collector, Palanpur, set aside the auction, which was confirmed by the T.D.O. Palanpur vide order dated 02.06.2012. The petitioners preferred Appeal being B/Jamin-4/Appeal Case No. 72 of 2015 before the District Collector, Palanpur, which was also rejected by the order dated 28.12.2016. Further Revision Application No. MVV/Jaman/ Banas/2/2017 filed by the petitioners before the S.S.R.D. also met with the same fate by the order dated 11/24.04.2018. [6.0] Learned advocate Mr. Popat appearing for the petitioners has submitted that Form-F or H of the Rules are only an agreement between the parties i.e. the State Government and the auction purchasers and the jurisdiction of the Civil Court would govern the entire issue. He has submitted that the entire process was contemplated under Sections 42 and 43 of the Code, which resulted Page 3 of 23 Downloaded on : Sun Jun 14 00:01:29 IST 2020 C/SCA/10692/2018 CAV JUDGMENT into an agreement between the State Government and the auction purchasers and hence, cancellation of such agreement can only be challenged before the competent Civil Court. He has submitted that the "sanad" is a general form of Form-F and Form-H and it cannot be strictly construed as a "sanad". In support of his submissions, he placed reliance on the judgment in the case of Govind Murji Patel (Kerai) v. State of Gujarat, reported in 2007 (1) GLH 671, in the case of State of Gujarat v. Patel Raghav Natha & Ors., reported in AIR 1969 Supreme Court 1297 and in the case of Patadia Bhaichand Premji v. Government of Gujarat, reported in 2019 (3) GLR 1978. He has submitted that the land in question was further sold by the registered sale deeds and such order, which invites adverse civil consequences, can only be set aside by the Civil Court. He has submitted that the subsequent purchasers are not joined as private respondents and hence, principles of natural justice are violated. In support of his submissions he has placed reliance on the judgment in the case of Shah Education and Medical Foundation v. Jamnagar Municipal Corporation, reported in 2006 (2) GLH 198 and in the case of Union Bank of India v. K.R.Ajawalia, reported in 2005 (3) GLH 1.
[7.0] Learned advocate Mr. Popat has further submitted that assuming that there is jurisdiction with the revenue authorities under Page 4 of 23 Downloaded on : Sun Jun 14 00:01:29 IST 2020 C/SCA/10692/2018 CAV JUDGMENT Section 203 of the Code, however, there is no locus to the respondent No. 7 to object or raise his personal grievance in a nature of Public Interest Litigation before the revenue authorities. He has submitted that the respondent No. 7 has never participated in the auction process and hence, the revenue authorities should not have assumed the jurisdiction of a High Court. He has submitted that under the provisions of Section 205 of the Code, the limitation of filing an appeal under Section 203 of the Code is sixty (60) days and beyond the limitation period, if any application is filed, the same cannot be entertained without their being any separate application for condonation of delay. He placed reliance in this regard on the judgment of the Supreme Court in the case of Ragho Singh v. Mohan Singh & Ors., reported in 2001(9) SCC 717 and in the case of Kalpeshbhai Natwarlal Patel v. State of Gujarat, reported in 2009 (3) GLH 372. It was further submitted by learned advocate Mr. Popat that the order passed by the T.D.O., Palanpur cannot be challenged before the Deputy Collector, as the T.D.O. has exercised the powers of the District Collector while confirming the auction proceedings. He placed reliance on the judgment of this Court in the case of Kanbi Arjan Kana & Ors. v. State of Gujarat & Ors., reported in 2000 (2) GLH 593. It was submitted that the order of the T.D.O. can be challenged only under the provisions of the Gujarat Panchayats Act, 1993 before the District Development Page 5 of 23 Downloaded on : Sun Jun 14 00:01:29 IST 2020 C/SCA/10692/2018 CAV JUDGMENT Officer. In support of his submissions, he placed reliance on the decision of this Court in the case of Madarsing Manaji Rajput v. State of Gujarat, reported in 2001(2) GLR 1824.
[8.0] Learned advocate Mr. Popat contended that the scope and object under Section 203 of the Code is in a narrow compass and the same cannot be widened even for a breach of an agreement and separate proceedings are required to be initiated. He has submitted that the provisions of Section 79(A) of the Code has to be resorted for setting aside the sale. He placed reliance on the judgment of the Supreme Court in the case of Pravinchandra Amarsinh Parmar v. Deputy Collector, reported in 2010 SSC Online Gujarat 6703. He has further submitted that in the subsequent appeals, which are preferred by the petitioners, they cannot be put in the worst condition by the appellate authorities, as the appellate authorities, have considered new material and enhanced the scope of appeals /original proceedings, which cannot be permitted. Lastly, it was submitted that since the objection is raised only qua five plots, the respondent authorities should have restricted their action to only five plots and not beyond that. Thus, he has submitted that the impugned orders are required to be set aside.
[9.0] Vehemently opposing the aforesaid submissions advanced by the learned advocate for the petitioners, learned Assistant Page 6 of 23 Downloaded on : Sun Jun 14 00:01:29 IST 2020 C/SCA/10692/2018 CAV JUDGMENT Government Pleader Mr. Dhawan Jayswal has submitted that the writ petitions do not require to be entertained as the authorities have passed the orders canceling the auction since the same is held illegally for the purpose of benefiting the persons to whom the said plots are never meant to be alloted.
[10.0] The learned Assistant Government Pleader has submitted that the entire exercise was a fraud as it has been found that several irregularities and illegalities were committed in the entire auction proceedings by the Sarpanch in which either his close relative or known persons have participated. Learned Assistant Government Pleader Mr. Jayswal invited the attention of this Court to the findings of the order dated 28.12.2016 passed by the District Collector, Banaskantha. He has submitted that the auction was only held for the benefits of tribals and as per the condition of the auction a person is only entitled to buy maximum two plots and in the present case, after the investigation was done, the authorities have found that some persons had bought four plots and they were subsequently sold in lower price to the son of the Sarpanch. He placed reliance on the statement produced in the order dated 28.12.2016 passed by the District Collector, Banaskantha. Thus, he has submitted that once the entire auction proceedings are premised on a fraud, the same would also vitiate further sale deeds, which are executed for an oblique motive on behalf of such auction purchasers, hence, the authorities Page 7 of 23 Downloaded on : Sun Jun 14 00:01:29 IST 2020 C/SCA/10692/2018 CAV JUDGMENT have cancelled the said auction.
[11.0] Learned Assistant Government Pleader has submitted that the entire exercise was initiated by the State authorities under the provisions of the Code and hence, such powers are invoked by the Revenue Officers for canceling the entire auction and the subsequent sale deeds. He has submitted that as per the policy of the State Government, the District Collector, Banaskantha and Deputy Collector, Palanpur, being the revisional authorities have precisely acted in accordance with the provisions of the Section 203 of the Code and ultimately the land is vested in the State Government. He has submitted that since the said land was of the Panchayat and as per the Government instructions, issued vide circular dated 03.06.1980 by the Revenue Department, the gamtal, the land is to be disposed of as per the provisions of the Code, the T.D.O. or D.D.O., have to act as a Revenue Officer. He has submitted that thus the contention raised by the petitioners that the order of the T.D.O. has to be challenged before the D.D.O., deserves to be rejected since the T.D.O. has acted as a Revenue Officer under the provisions of Section 203 of the Code. Reliance is placed by the learned Assistant Government Pleader on the judgment of this Court dated 05.05.2018 passed in Second Appeal No. 251 of 1991 and has submitted that the civil court has no jurisdiction in setting aside the orders passed by the Revenue Authorities. Finally, it was submitted by the learned Page 8 of 23 Downloaded on : Sun Jun 14 00:01:29 IST 2020 C/SCA/10692/2018 CAV JUDGMENT Assistant Government Pleader that the petitioners are claiming that they were issued sanad after the auction was over, however, the documents, on which, they have placed reliance is only Form No. F, which is an agreement only and the same cannot be termed as sanad; [12.0] The learned Assistant Government Pleader has submitted that it was found by the authorities that the initial maps of the plots from 1 to 63, which were auctioned on 16.06.1994, thereafter for the rest of the plots i.e. No. from 64 to 84, the auction was held on 14.05.2012. He has submitted that it was noticed that the maps of the aforesaid plots were altered and there was an alteration made in the signatures of the authorities and subsequently the plots No. 85 to 89 were added in the maps and the plots which were not included in the auction were also allotted. It was submitted that the lay out plan of the concerned plots were tempered with and the manipulation was done and the said plots were obtained and further sold to the interested persons on a lower price. He has submitted that thus, the petitioners, who are beneficiaries of the plots on such interpolation cannot claim their rights on the said plots and hence, the authorities have rightly cancelled the auction and the subsequent sale deeds. He has submitted that as per the observations made by this Court in the judgment reported in the case of Govind Murji Patel (Kerai) (supra), the State Government and its authorities can exercise the power, if it is found that the beneficiary is in collusion with the officers or any Page 9 of 23 Downloaded on : Sun Jun 14 00:01:29 IST 2020 C/SCA/10692/2018 CAV JUDGMENT extraneous consideration have prevailed. He has submitted that in the present case, it is found by the authorities that right from its inception, the auction was carried out fraudulently and the aforesaid land, which was meant for the tribals have ultimately landed in the hands of the Sarpanch and his close relatives. Thus, the impugned order may not be set aside.
[13.0] I have given my thoughtful consideration to the submissions advanced by the learned advocates appearing for the respective parties to the lis. The entire record is also perused by this Court.
[14.0] The oral submissions advanced by the learned advocate appearing for the petitioners do not reflect in the actual pleadings of the writ petitions. Be that as it may, this Court has considered the oral submissions of the learned advocate appearing for the petitioners. The facts as narrated hereinabove suggest that the authorities have cancelled the auction, which was held on 14.05.2012 for selling the plots at village Chadotar, Taluka Palanpur, District Banaskantha. The facts emerging from the record reveal that there were various plots in the aforesaid village from Plots No. 1 to 89, which were to be disposed of by way of auction. For the plots No. 1 to 63, a notification dated 28.04.1994 was issued and accordingly such auction was held on 16.06.1994. For the remaining plots No. 64 Page 10 of 23 Downloaded on : Sun Jun 14 00:01:29 IST 2020 C/SCA/10692/2018 CAV JUDGMENT to 84 the auction was held on 14.05.2012. It is also established that the aforesaid plots were meant for the people belonging to the reserved categories. After the aforesaid auctions were held, the agreement, as per Form-F, which is prescribed under Rules 37, 43 and 52 of the Rules, was issued to the petitioners by the T.D.O., Palanpur.
[15.0] It appears that thereafter, the respondent No. 7, who is the resident of the same village, filed Appeal No. 1 of 2013 before the Deputy Collector, Palanpur, pointing out various irregularities in the auction which were held on 14.05.2012. The respondent No. 7 had approached the Deputy Collector, Palanpur complaining that the order of the T.D.O. affirming the auction dated 02.06.2012 is required to be set aside as the entire auction is de hors the provisions of law, more particularly, Section 110 of the Gujarat Panchayats Act, and has alleged that the plots, which were meant for the residents of the village belonging to the reserved categories, have landed in the hands of the Sarpanch and his close relatives. The Deputy Collector, Palanpur, after carrying out the necessary exercise ultimately found the allegations made by the respondent No. 7, to be correct and hence, cancelled the order of the T.D.O. dated 14.05.2012, granting approval to the auction. It is also found that the lay out plan of the concerned plots were tempered with and the land, which was meant for common road as well as open plots were also Page 11 of 23 Downloaded on : Sun Jun 14 00:01:29 IST 2020 C/SCA/10692/2018 CAV JUDGMENT included in the lay out plan and ultimately 5 extra plots i.e. plot Nos. 85 to 89 were also added in the lay out plan and the auction was undertaken for those plots also. It is also revealed that the documents in relation to the auction were also fabricated. It is revealed that the proposal for selling the plots by auction was sent by the Gram Panchayat on 23.03.2012 whereas the order of Talati-cum- Mantri for issuing the Notification for auction is dated 15.03.2012, which cannot be of anterior date to that of the proposal sent by the Gram Panchayat. Thus, the auction is tainted with fraud from the inception. From the entire village only 23 persons have participated. The plot nos.64 to 74, which were reserved for the Schedule Tribes are purchased by only four persons, in which three persons Harijan Nathabhai, Harijan Daliben, Harijan Ashokbhai, who are members of one family, have procured 9 plots, and the peon of the Gram Panchayat has purchased two plots. Thus, the employees of the Gram Panchayat have also participated in the auction. It is also found that the rojkam is also tempered as the persons who do not belong to Schedule Tribe have also signed the rojkam and participated in the auction. The plots are thereafter sold to the Sarpanch and his family at lower rates within a period of six months. The Rojkam is also found to be tempered with. It is also observed that the entire auction is subject to Section 172 of the Code as the rest of the amount is also to be paid and there is a violation of the provisions of Section 172 of Page 12 of 23 Downloaded on : Sun Jun 14 00:01:29 IST 2020 C/SCA/10692/2018 CAV JUDGMENT the Code as 3/4th amount in advanced is not paid by such persons. It is also found by the authorities that the persons of the reserved categories, who are allotted such plots in the auction, have subsequently, within a period of six months, sold the same on a lower price to the Sarpanch and his close relatives. Thus, it is surprisingly to notice that the entire auction was carried out for the purpose of the reserved categories, however, after purchasing the plots in the auction, they further sold the same to the Sarpanch and his close relatives on a lower price. It is also established that one of the condition of the auction was that a person participating in the auction, will not get more than two plots, however, in the present case, it is noticed that the said condition is blatantly violated. Ultimately, the respondent authorities has found that 21 plots have been purchased by the Sarpanch and his relatives and even the employees of the Panchayat have participated in such auction. There is also interpolation of record and ultimately the plots, which were meant for the reserved categories, have landed in the hands of the Sarpanch and his relatives. Thus, the entire auction is tainted with serious fraud and it appears that the employees of the Panchayat have played a positive role in disposing of the plots of the land, which was belonging to the Panchayat.
[16.0] It was contended by the petitioners that the order of the T.D.O. cannot be challenged before the Deputy Collector as he has Page 13 of 23 Downloaded on : Sun Jun 14 00:01:29 IST 2020 C/SCA/10692/2018 CAV JUDGMENT deemed to have exercised the powers of the Collector, while confirming the proceedings of auction. Reliance was placed on the judgment in case of Kanbi Arjan Kana v. State of Gujarat, reported in 2000 (2) GLH 593. The decision of the Coordinate Bench of this Court in the case of Kanbi Arjan Kana (supra) will not apply in the facts of the present case, since, while interpreting the provisions of Section 211 of the Code, the Coordinate Bench has held that the provisions of Section 211 of the Code empowered the State Government and certain revenue officers to call for and examine the record of any proceedings or inquiry of any subordinate officers. In the present case, the Deputy Collector, Palanpur has examined the order of the T.D.O. who has acted as a revenue officer under the provisions of Section 203 of the Code. Section 203 of the Code reads as under;-
"Section 203: Appeal to lie from any order passed by revenue officer to his superior In absence of any express provisions of this Act, or of any law for the time being in force to the contrary, an appeal shall lie from any decision or order passed by a revenue officer under this Act or any other law for the time being in force to that officer's immediate superior, whether such decision or order may itself have been passed on appeal from a subordinate officer's or order or not.
Section 171 of Gujarat Panchayats Act, 1993 reads as under:Page 14 of 23 Downloaded on : Sun Jun 14 00:01:29 IST 2020 C/SCA/10692/2018 CAV JUDGMENT
Section 171: Certain class or officers posted under Panchayat to be Revenue Officers and their powers (1)Notwithstanding anything contained in this Act and the Land Revenue Code, a District Development Officer, a Taluka Development Officer and such Revenue Officers not below the rank of a Deputy Collector as may be posted under a District Panchayat and designated by the State Government in this behalf shall be deemed for the purpose of this Chapter it shall be lawful for the State Government to define the area within which any such officer shall exercise jurisdiction and to confer on such officer all or any of the powers exercisable or any other Revenue Officer under the Land Revenue Code.
(2) Wherein the case of any such officer the area of his jurisdiction has been defined and the powers are so conferred, such officer shall have and exercise the like authority over a village Panchayat functioning in such area and exercising the power conferred on it and discharging the functions under the Land Revenue Code has over the village accountant or panel or other similar functionary under the Land Revenue Code."
[17.0] Thus, under the provisions of Section 171 of the Gujarat Panchayats Act, 1993, the Taluka Development Officer is treated as Revenue Officer within the meaning of the Code, hence the provision of Rule 203 of the Rules are attracted and any order which is passed by a Taluka Development Officer, can be challenged in an appeal by resorting to the said provision before his superior. [18.0] The petitioners are the beneficiaries of Form F, which has been issued under Rules 37, 43 and 52 of the Rules by the Talati- Cum-Mantri of the Chadotar Gram Panchayat. On the basis of the auction as well as such Form-F, the T.D.O, Palanpur has granted the permission to utilize the plots for residential purposes. The order dated 02.06.2012 reflects that the allottees of the plots are directed Page 15 of 23 Downloaded on : Sun Jun 14 00:01:29 IST 2020 C/SCA/10692/2018 CAV JUDGMENT to give an agreement as per Form-H (Rule 43 of the Rules). Thus, it cannot be contended by the petitioners that the order of the T.D.O., who is subordinate to Deputy Collector, cannot be challenged before him or before the District Collector.
[19.0] The petitioners have taken shelters under various provisions of the Code and have also placed reliance under Section 79(A) of the Code which stipulates summary eviction of person, unauthorizedly occupying the land. It was contended that no such procedure was followed as prescribed under Section 79(A) of the Code before canceling the auction or the sale deeds. At this stage, I may observe that the petitioners are blissfully silent on the aspect of fraud. The only submission, which is coming forth is that the plots in which no interpolation of map is made, the same may be segregated. Thus, it is accepted by them that fraud has been committed in the entire exercise of allotting the plots from the inception of auction. The general doctrine that fraud vitiates everything is well established in law. At this stage, it would be apposite to refer to the observations of the Coordinate Bench in the case of Govind Murji Patel (Kerai) (supra), wherein the Court has held that the agreement for allotment of the land by way of "sanad" can be set aside even if it is found that the entire exercise of power is in collusion or with any extraneous consideration. The Court has observed thus;- Page 16 of 23 Downloaded on : Sun Jun 14 00:01:29 IST 2020 C/SCA/10692/2018 CAV JUDGMENT
" 11. It is true that in a matter of allotment of the Government land, revisional jurisdiction or the scrutiny by the higher authority is normally not to be excluded. However, it may vary from facts to facts. In a case where the exercise of power is in collusion or with extraneous consideration, it may stand on a different footing. In a case where the action is with inherent lack of jurisdiction the same also stand on a different footing. But in a case where the action has proceeded on the basis that the citizens are led to believe that the Officer has the authority to exercise the power and the auction participant bonafide has altered his position substantially to a great extent and if the officers of the State Government have not immediately initiated the action, then in such circumstances, if the challenge is brought to the Court against the allotment and may be on the detailed scrutiny, the Court finds that the powers were not delegated or otherwise to the officer, who allotted the land, the Court while exercising the power would try to balance the situation of making the loss good to the innocent person, who was led by the representation made of the officers of the State Government, save and except the cases where the exercise of power in favour of the beneficiary is in collusion with the officer or extraneous consideration prevailed. Nowhere through out in the proceedings the authorities have found that the powers were exercised in collusion and/or with any extraneous consideration. Therefore, under such circumstances, even if the allotment is to be interfered with or set aside by the law Courts, the proper evidence would be required to be brought on record for alteration of the condition by the party whether acted in bonafide and, if yes, the quantum for compensating for the default, if any, ultimately found of the officers of the State Government or the delegatee of the State Government. Therefore, unless such evidence is brought on record, the relief for setting aside the agreement for allotment of the land by way of sanad may not be granted by the competent Court, merely because subsequently it is allegedly found that the officer had no authority. As such, the law Court may be required to consider simultaneously the matter for passing appropriate orders for compensating the aggrieved party while acting under bonafide belief and altering his possession based on the same. In the present case no material or evidence is placed on record for the exercise of power in collusion or with extraneous consideration, nor as observed hereinabove, for inherent lack of power and, therefore, it would be just and proper to relegate the aggrieved party to prefer civil suit for setting aside of the allotment. In view of the aforesaid circumstances, I find no case to take a different view than the view Page 17 of 23 Downloaded on : Sun Jun 14 00:01:29 IST 2020 C/SCA/10692/2018 CAV JUDGMENT taken by this Court in the case of S. Patel Raghav Natha v. G.F. Mankodi, Commissioner, Rajkot Division and Ors. (supra).
[20.0] Thus, the Coordinate Bench has held that if it is not found that there is no material or evidence coming out of the record that the exercise of powers is in collusion or with extraneous consideration, or there is inherent lack of power then it would be just and proper to relegate the aggrieved party to institute a civil suit for setting aside the allotment. In the present case, it is established that the exercise of powers was in collusion with the Panchayat employees and the auction was carried out with extraneous consideration to benefit the Sarpanch and his relatives and hence, it cannot be said that the revenue authorities cannot exercise powers for setting aside the entire auction and the subsequent purchasers.
[21.0] In the case of Andhra Pradesh State Financial Corporation v.
Gar Re Rolling Mills, 1994(2) SCC 647, the Apex Court has held thus;
A court of equity, when exercising its equitable jurisdiction under Article 226 of the Constitution must so act as to prevent perpetration of a legal fraud and the courts are obliged to do justice by promotion of good faith, as far as it lies within their power In the case of Smt. Shrisht Dhawan vs. M/s Shaw Bros., AIR 1992 SC 1555, it has been held as under:
Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct.Page 18 of 23 Downloaded on : Sun Jun 14 00:01:29 IST 2020 C/SCA/10692/2018 CAV JUDGMENT
In the case of State of Andhra Pradesh v. T.Suryachandra Rao, 2005 (6) SCC 149;-
9. A "fraud" is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. (See S.P. Changalvaraya Naidu v. Jagannath, 1994 (1) SCC 1).
10. "Fraud", as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by wilfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations, which he knows to be false, and injury enures therefrom although the motive from which the representations proceeded may not have been bad. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio . Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata . (See Ram Chandra Singh v. Savitri Devi and Ors., 2003 (8) SCC 319).
11. xxx xxxx xxx xxx
12. xxx xxxx xxx xxx
13. xxx xxxx xxx xxx
14. xxx xxxx xxx xxx
15. "Fraud" is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. Although negligence is not fraud but it can be evidence on fraud; as observed in Ram Preeti Yadav's case [(2003) 8 SCC 311].
16. In Lazarus Estate Ltd. v. Beasley (1956) 1 QB 702, Lord Denning observed at pages 712 and 713, Page 19 of 23 Downloaded on : Sun Jun 14 00:01:29 IST 2020 C/SCA/10692/2018 CAV JUDGMENT "No judgment of a Court, no order of a Minister can be allowed to stand if it has been obtained by fraud. Fraud unravels everything."
In the same judgment Lord Parker LJ observed that fraud vitiates all transactions known to the law of however high a degree of solemnity. {eD. (1956) 1 ALL ER 341 at p.351 placitum E-F) [22.0] The ratio laid down by the Apex Court in the aforementioned judgments is that the Courts of law should not perpetuate the fraud by entertaining petitions on behalf of the petitioners, who are beneficiaries of fraud, even if their transactions are bona fide. On the principle that "Fraud unravels everything", the subsequent actions which arise out of fraud are required to be set aside even if they are bona fide. It is trite that a court of equity, when exercising its equitable jurisdiction under Article 226 of the Constitution of India must so act as to prevent perpetration of a legal fraud and the courts are obliged to do justice by promotion of good faith, as far as it lies within their power. Thus, assuming that the impugned orders are passed de hors the provisions of the Code, this Court cannot set aside such orders since the entire case right from the holding of auction is premised on fraud, hence the question of dealing the petitions on merit would not arise for consideration. The petitioners, even if they are considered as bona fide purchasers, have no right over the land, which is obtained by deception, fraud and manipulation of the record. A person can never rely on fraudulent act to justify the application of Rule of law to his own profit. Their Page 20 of 23 Downloaded on : Sun Jun 14 00:01:29 IST 2020 C/SCA/10692/2018 CAV JUDGMENT submissions of restricting the action with regard to the plot nos. 84 to 89 do not merit acceptance since the entire edifice of auction is built on tampering and falsification of record. The entire transaction is founded on fraud, and the vice of fraud will travel beyond to bona fide purchasers also. The bona fide acts cannot be segregated, since fraud vitiates everything. Hence, all the subsequent acts and sale deeds deserve to be set aside.
[23.0] Thus, the contention raised by the petitioners that only civil court has the jurisdiction to set aside the entire process does not merit acceptance since the inception of the auction was under the provisions of the Code. When it was found that the very purpose of auction is defeated, by committing such fraud, it is always open for the revenue authorities to undertake the necessary exercise for setting aside the same. It is also contended that the respondent No.7, who is the resident of the same village had no locus to raise such objection before the authorities since he never participated in the process of auction. Such submission does not merit acceptance since when it was pointed out by the respondent No. 7 that the fraud has been committed, the Deputy Collector, Palanpur investigated and verified all the record and after granting opportunity of hearing to the petitioners and the concerned plot holders, has set aside the auction as well as the order dated 02.06.2012 passed by the T.D.O. As narrated hereinabove, from the very inception, the auction was Page 21 of 23 Downloaded on : Sun Jun 14 00:01:29 IST 2020 C/SCA/10692/2018 CAV JUDGMENT conducted with an oblique motive and with extraneous consideration, the entire proceedings cannot be set aside on the ground of limitation. It is well established that if the orders are obtained by fraud, the bar of limitation would not apply into such cases. Hence, there was no need to file a separate application for condonation of delay by the respondent No. 7 as the authorities, on his application have investigated the entire episode and have unearthed the fraud. Thus, non-filing of the application for condonation of delay would not vitiate the order passed by the respondent authorities. The petitioners cannot take the benefits of their own wrong as they are beneficiaries of the plots of land, which they are procured by committing fraud. It is puerile attempt on behalf of the petitioners to contend that the authorities, while passing the aforesaid order, have not strictly complied with the procedure established by the law and cannot resort to the provisions of the Code since the allotment of plots and the subsequent sale deeds are premised on illegalities. [24.0] The petitioners cannot take shelter under the provisions of the Code since they are the beneficiaries of fraud and illegal act and it is not necessary for the respondent authorities to resort to the provisions of the Code before canceling the illegal action. The maxim "Ex-turpa causa non oritur action"(no action can arise from illegal act) is well established. The authorities, after a detailed investigation and after affording opportunity of hearing to the Page 22 of 23 Downloaded on : Sun Jun 14 00:01:29 IST 2020 C/SCA/10692/2018 CAV JUDGMENT affected persons, have ultimately found that they are the beneficiaries of fraud committed in connivance with the employees of the Panchayat and hence, the auction, which goes to the root of the matter, has been held to be illegal and has been precisely cancelled. Thus, the petitioners are only entitled for opportunity of hearing, which the respondent authorities have afforded to them and after hearing them and carrying out the necessary exercise and investigation, it is found that the entire exercise of initiating the auction as well as conferring of the plots is premised on fraud. Thus, as narrated hereinabove, fraud vitiates everything, hence no fault can be found in the action of the respondent authorities in canceling the auction and subsequent action, which is premised on such fraud and illegal action. The writ petitions, therefore fail. Rule is discharged.
As a sequel, Civil Application (For Stay) No. 1 of 2019 is disposed of accordingly.
Registry to place a copy of this order in each of the connected matter.
Sd/-
(A. S. SUPEHIA, J) VISHAL MISHRA Page 23 of 23 Downloaded on : Sun Jun 14 00:01:29 IST 2020