Punjab-Haryana High Court
Hardam Singh And Others vs Additional Director Consolidation on 6 July, 2012
Bench: Rajive Bhalla, Rakesh Kumar Jain
Civil Writ Petition No.2553 of 2001 1
IN THE HIGH COURT OF PUJAB AND HARYANA AT
CHANDIGARH.
Civil Writ Petition No.2553 of 2001
Date of Decision:6th July, 2012
Hardam Singh and others ..Petitioners
versus
Additional Director Consolidation, Punjab and others ..Respondents
Civil Writ Petition No.2645 of 2001
Balam Singh and others ..Petitioners
versus
Additional Director Consolidation, Punjab and others ..Respondents
and
Regular Second Appeal No.3787 of 2010
Gobind Singh and another ..Appellants
versus
Nirmal Singh and another ..Respondents
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MR. JUSTICE RAKESH KUMAR JAIN
Present: Mr. M.L.Saini, Advocate for the petitioners.
(CWP Nos.2553 and 2645 of 2001).
Mr. Amarjit Markan, Advocate
for the appellants in RSA No. 3787 of 2010.
Mr. Manoj Bajaj, Additional Advocate General, Punjab
for the State.
Mr. S.S.Salar, Advocate
for respondent no.2.
Civil Writ Petition No.2553 of 2001 2
RAJIVE BHALLA, J.
By way of this order, we shall dispose of two writ petitions, namely, Civil Writ Petition No. 2553 of 2001 (Hardam Singh and others versus Additional Director Consolidation, Punjab and others) and Civil Writ Petition No. 2645 of 2001 (Balam Singh and others versus Additional Director Consolidation, Punjab and others) as they involve adjudication of similar questions of law and facts. For the sake of convenience, facts are being taken from Civil Writ Petition No. 2553 of 2001. Vide order dated 10.5.2012, Regular Second Appeal No. 3787 of 2010 was ordered to be listed with Civil Writ Petition No.2645 of 2001.
The petitioners in Civil Writ Petition No. 2553 of 2001 pray for setting aside orders dated 30.9.1996 (Annexure P-2) and 25.8.2000 (Annexure P-5) passed by the Additional Director Consolidation, Punjab, (exercising powers of State Government under section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, respectively, whereas in Civil Writ Petition No. 2645 of 2001, the petitioners pray for setting aside orders dated 24.9.1996 (Annexure P-2) and 25.8.2000 (Annexure P-5) by the Additional Director Consolidation, Punjab, Mohali (exercising powers of State Government under section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948.
The controversy in the instant petition is whether an order obtained from the Additional Director, Consolidation, by perpetuating Civil Writ Petition No.2553 of 2001 3 a fraud, can be set aside by his predecessor, if the fraud is proved.
Before we proceed to answer this question, it would be appropriate to set out the facts. The petitioners are residents and right holders of Village Longowal, Tehsil and District Sangrur and in that capacity, claimed proprietary rights as co-sharers of land recorded as "Jumla Mushtarka Malkan" and "Shamilat Deh". A few proprietors approached the Additional Director, Consolidation, by way of a petition, claiming ownership of land, reserved during consolidation and prayed that the land be partitioned among them. The Additional Director, Consolidation, vide order dated 22.5.1987, partially allowed the petition and ordered that 365 Kanals of land would vest in the Municipal Committee, whereas the remaining 728 Kanals-04 Marlas of land, would be partitioned amongst right holders. The proprietors/right holders filed Civil Writ Petition No.7000 of 1987, which was allowed by ordering that land measuring 365 Kanals, left for the Municipal Committee, be also partitioned amongst proprietors. The matter was thereafter taken up by the Consolidation Officer, who partitioned the land amongst right holders as per their shares on 23.12.1992. Respondent No.2 filed an application under the East Punjab Holdings (Consolidation and Prevention of Fragmentation Act, 1948 (hereinafter referred to as "the 1948 Act") praying for change of the land allotted to him without impleading the right holders by individual name, but by impleading "Jumla Mushtarka Malkan Wa Digar Haqdaran". The land allotted to respondent no. 2 was altered by the Additional Director, Consolidation, vide order dated 30.9.1996. The petitioners and other Civil Writ Petition No.2553 of 2001 4 right holders had no knowledge of the order and it was only after respondent no.2 made an attempt to get the order implemented in the revenue record did they come to know of the said order.
A few right holders filed Civil Writ Petition No. 14490 of 1999 (Ranjit Singh versus Additional Director Consolidation of Holding, Punjab, Mohali and another), against order dated 30.9.1996, which was dismissed on 12.10.1999 on account of unexplained delay and laches. The petitioners filed a petition under section 42 of the 1948 Act before the Additional Deputy Commissioner, praying that as order dated 30.9.1996, passed by his predecessors, had been obtained by fraud, it should be set aside. The Additional Director, Consolidation, examined the record, but after recording a finding that fraud is proved dismissed the petition by holding that as order dated 30.9.1996 has been affirmed by this Court in Civil Writ Petition No. 14490 of 1999 (Ranjit Singh versus Additional Director Consolidation of Holdings, Punjab, Mohali and another), no relief can be granted to the petitioners. The order dated 25.8.2000 reads as follows:-
" In the above said petition no person was impleaded as party by name. Rather right-holders Shamlat and Jumla Mustarka Malkan were impleaded as second party.
Punjab & Haryana High Court in CWP No. 19577/96 (Jumla Mustarka Malkan village Chau Majra Vs. Additional Director, Consolidation and others) dated 22-1- 1998 has held that to implead second party in this manner cannot call a proper party because it is neither a juristic Civil Writ Petition No.2553 of 2001 5 person nor a legal entity. Said petitions can not be treated against a juristic person, institution, authority or a particular person. The proper party should have been made either as per Order 1 Rule 8 of CPC or the persons against who relief has been claimed, should have been impleaded by name. Without impleading a proper party, no relief can be claimed. In such like situation a non juristic person can not be even called a party what to talk about it being a proper party. Therefore, no relief should have been given in this case and no Mustri Munadi was conducted in the village regarding Jumla Mustarka Malkan. Therefore, this conclusion can be drawn that this all is the consequence of connivance and of an unfair trial.
Though, I have reached the conclusion that the order under challenge is a consequence of a connivance and a fraud but I am unable to give any relief in this case because some other khewatdars of the village Ranjit Singh @ Raj son of Gurdial Singh r/o Longowal challenged that order in CWP No. 14490/99 and this writ petition was dismissed vide order dated 12.10.99 and as per the ruling of the Punjab & Haryana High Court PLJ 2000(2) page 36 that order stands merged with the order of High Court dt. 12-10.1999, therefore, the petition is being dismissed. The petitioners can move the appropriate Court for justice."Civil Writ Petition No.2553 of 2001 6
Counsel for the petitioners submits that fraud vitiates all acts and orders. The fact that a writ petition filed against an order obtained by fraud, has been dismissed, does not prohibit the concerned authority or court from setting aside such an order, where it is called into question or pressed into defence. It is further contended that the doctrine of merger, the principles of binding precedent or finality to orders, do not extend to orders obtained by fraud. After the Additional Director, Consolidation, had recorded a finding that order dated 30.9.1996 had been obtained, by respondent no.2, by perpetuating a fraud, should have, therefore, set aside the order passed by his predecessor. The petitioners place reliance upon the following judgments :- S.P. Changalvaraya Naidu (dead) by LRs versus Jagannath (dead) by LRs, AIR 1994 SC 853; Gram Panchayat of Village Naulakha versus Ujagar Singh, 2000(7) SCC 543; and A.V. Papayya Sastry and others versus Government of Andhra Pradesh and others, 2007(2) RCR (Civil) 431.
Counsel for respondent no.2 submits that order challenging allotment of the land to the petitioners is legal and valid. The petitioners have not alleged that they are in possession of any part of the land and, therefore, have no locus standi to file the instant petition. It is further submitted that Jumla Mustarka Malkan was served through Lambardar Nachhattar Singh and mushtri munadi (publication in the locality). Shri S.P.Sharma, Advocate, was heard, for Jumla Mushtarka Malkan, in detail and only thereafter was order dated 30.9.1996 passed. It is further contended that as Civil Writ Petition No.14490 of 1999, filed by another proprietor has already Civil Writ Petition No.2553 of 2001 7 been dismissed, order dated 19.11.1996, has merged into the order passed by this court and therefore, was not rightly set aside by the Additional Director Consolidation.
We have heard counsel for the parties and perused the factual matrix of the case.
A perusal of order dated 25.8.2000 passed by the Additional Director, Consolidation, reproduced in the preceding part of the judgment, reveals that the Additional Director, Consolidation, has recorded a categoric finding that respondent no.2 obtained order dated 30.9.1996 by perpetuating a fraud. The finding recorded by the Additional Director, Consolidation, has not been challenged by respondent no.2. The Additional Director, Consolidation, however, dismissed the petition on the ground that the earlier order had merged in the order passed by this court. The Additional Director, Consolidation has, in essence, invoked the doctrine of merger, while dismissing the petition.
The doctrine of merger is founded on the principles of judicial propriety and the need to maintain a hierarchy in the justice delivery system so as to prevent it from sinking into a quagmire of perpetual uncertainty. The doctrine of merger postulates that an order/judgment of a subordinate court or a fora once affirmed by a superior court or fora, merges into the order/judgment of the superior court or fora and is, therefore, final, binding and operative amongst parties to the lis. The doctrine, however, admits to a large number of exceptions. One such exception is fraud. Fraud is a species of conduct, that vitiates all acts performed or orders Civil Writ Petition No.2553 of 2001 8 passed. No person, much less, a successful litigant, may press into service the doctrine of merger, in defence, of a finding even if it is affirmed by a higher court or fora, if the order or/finding has been obtained by fraud. To affirm a fraudulent order, on the anvil of the doctrine of merger, in our considered opinion, would be a travesty of justice. In order to place our conclusions in perspective, reference may be made to the judgment in S.P. Changalvaraya Naidu (dead) by LRs versus Jagannath (dead) by LRs (supra). A relevant extract from this judgment reads as follows:
"1. "Fraud-avoids all judicial acts, ecclesiastical or temporal" observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree - by the first court or by the highest court - has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings."
"7............ "The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property- grabbers, tax evaders, bank loan dodgers and other Civil Writ Petition No.2553 of 2001 9 unscrupulous persons from all walks of life find the court process a convenient lever to retain the, illegal-gains indefinitely. We have no hesitation to say that a person whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of litigation."
The aforementioned judgment was followed in A.V. Papayya Sastry and others versus Government of Andhra Pradesh and others, (supra), wherein after considering a plea based upon the doctrine of merger, the Hon'ble Supreme Court held as follows:
"31. The above principle, however, is subject to exception of fraud. Once it is established that the order was obtained by a successful party by practising or playing fraud, it is vitiated. Such order cannot be held legal, valid or in consonance with law. It is non-existent and non est and cannot be allowed to stand. This is the fundamental principle of law and needs no further elaboration. Therefore, it has been said that a judgment, decree or order obtained by fraud has to be treated as nullity, whether by the court of first instance or by the final court. And it has to be treated as non est by every Court, superior or inferior."
We would also like to make a reference to a judgment of the Hon'ble Supreme Court in Gram Panchayat Village Naulakha versus Ujagar Singh , (supra), wherein the controversy was whether a plea of fraud or collusion has to be proved by filing an independent Civil Writ Petition No.2553 of 2001 10 suit. The Hon'ble Supreme Court, while reversing a Full Bench judgment of this court, held that avoidance of a judicial act on the ground of fraud or collusion, does not require a party to file an independent suit. A plea of fraud may be raised in collateral proceedings or before the authority, which passed the order, obtained by fraud. We are, therefore, sanguine about the correctness of our opinion that the doctrine of merger cannot be invoked to reject a plea of fraud, especially when fraud is proved.
After recording a finding of fact that order dated 30.9.1996 has been obtained by fraud, the Additional Director, Consolidation has committed an error in dismissing the petition on the ground that order dated 30.9.1996 has merged in an order passed by this court dismissing a writ petition. A perusal of order, dated 25.8.2000, leaves no manner of doubt, that order dated 30.9.1996 was, indeed, obtained by fraud. The Additional Director, Consolidation, was, therefore, well within his jurisdiction to entertain, decide and allow such a plea, but chose to dismiss the application on the erroneous belief that the doctrine of merger prevented him from entertaining the petition.
In view of the clear and unambiguous finding of fraud recorded in the impugned order, we have no hesitation in holding that the doctrine of merger could not prevent the Additional Director, Consolidation, from setting aside order dated 30.9.1996.
In view of what has been stated hereinabove, we allow both writ petitions, modify order dated 25.8.2000, passed by the Additional Director, Consolidation, and set aside orders dated Civil Writ Petition No.2553 of 2001 11 24.9.1996 and 30.9.1996 on the ground that they were obtained by fraud, but with liberty to respondent no.2, to establish his rights by filing an appropriate petition, in accordance with law. RSA No. 3787 of 2010
Regular Second Appeal was ordered to be heard along with Civil Writ Petition No.2645 of 2001. As we have decided Civil Writ Petition Nos. 2645 and 2553 of 2001 by order of even date, we direct the registry to set down the appeal for hearing as per roster.
( RAJIVE BHALLA ) JUDGE ( RAKESH KUMAR JAIN ) th 6 July, 2012 JUDGE VK