Bombay High Court
Tukaram Dhondiba Chopade vs Andappa Genu Walekar Since Deceased on 10 January, 2012
Author: Girish Godbole
Bench: Girish Godbole
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ast
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 753 OF 1991
Tukaram Dhondiba Chopade.
Residing at : Tellehal,
Post : Achegaon, Taluka
South Solapur, Dist: Solapur. ....Petitioner
Vs.
Andappa Genu Walekar since deceased
through his heirs :-
1. Nagnath Andappa Walekar,
since deceased through his heirs-
1A. Smt. Housabai Nagnath Walekar,
Age 62 years, Occ : Household,
R/o. At post Halchincholi,
Tal : Akkalkot, District : Solapur.
1B. Sou. Anita Pandhare,
Age 28 years, Occ : Household,
R/o. Hanjagi, Tal. Akkalkot,
District : Solapur.
2. Ramchandra Andappa Walekar,
Post : Achegaon, Tal : South
Solapur, Dist: Solapur.
3. Dhulappa Andappa Walekar,
since deceased through his heirs,
3A. Smt. Renuka Dhulappa Walekar,
Age 42 years, Occ: household,
3B. Andappa Dhulappa Walekar,
Age 13 years, Occ: Education,
3C. Gangadhar Dhullappa Walekar,
Age 11 years, Occ: Education,
Nos. 3A to 3C R/o at post Hotagi
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Station, Salgar Vasti, Plot No. 56,
Tal. South Solapur,
District : Solapur. ....Respondents
Mr. A.M. Kulkarni, with Mr. Akshay Shinde, Advocate for Petitioner.
Mr. V.A. Londhe with Mr. Manoj Chatge, Advocate for Respondents.
CORAM:- GIRISH GODBOLE, J
DATED:- JANUARY 10, 2012
JUDGMENT
1. I have heard Mr. Shinde and Mr. Kulkarni, Advocate for the Petitioner and Mr. Londhe with Advocate Chatge, Advocate for the Respondents. As is usual with proceedings under the Bombay Tenancy and Agricultural Land Act, 1948 (for short, B.T. & A.L. Act, 1948), even this litigation has a checkered history, though factual controversy involved in this Petition lies in a narrow compass.
BRIEF RESUME OF FACTS :
2. One Andappa Walekar was admittedly owner of land bearing Gat No. 98 of village Tillehal, Taluka South Solapur, District Solapur. The Petitioner Tukaram Chopade is the son of real sister of said late Andappa Walekar. On 19th December, 1975 the Petitioner submitted an ::: Downloaded on - 09/06/2013 18:03:56 ::: 3 wp753.91 Application purported to be an Application under Section 32 (O) r/w Section 32G of the B.T. & A.L. Act, 1948 before the Tahasildar South Solapur. On the same day the statement of the Petitioner and late Andappa were shown to have been recorded without issuing any notice on the Application and an Order was passed on the same day thereby declaring that the Petitioner has purchased ½ northern portion of land bearing Gat No. 98 to the extent of 2 Hector 2 R from late Andappa. It is an admitted position that this order was however, not challenged. It is also an admitted position that late Andappa was an illiterate person whereas the Petitioner was employed in Indian Railways.
3. In the year 1984 late Andappa filed Tenancy Application No. 107 of 1984 under Section 31, 32R and 33-B of the Act before the Additional Tahasildar and ALT, South Solapur. The Application was filed on the basis that the order of statutory purchase in respect of northern ½ portion of Gat No. 98 was obtained on the basis of false documents and that the Petitioner is not cultivating the said land personally and gives land to other persons as the Petitioner was serving at Miraj Railway Station. The ALT issued notice of this Application and the Petitioner filed reply.
Evidence was led. Ultimately by Judgment and Order dated 17/11/1984, ::: Downloaded on - 09/06/2013 18:03:56 ::: 4 wp753.91 the ALT and Additional Tahasildar, South Solapur dismissed the Tenancy Application No. 107 of 1984.
4. Aggrieved by this Order late Andappa filed Tenancy Appeal No. 8 of 1985 before the S.D.O., Solapur. By Judgment and Order dated 20th August, 1986, the learned SDO allowed the said Appeal and remanded the case to the ALT for fresh hearing. The S.D.O. observed that the ALT should also see whether the Certificate issued under Section 32M was correct or not.
5. After remand the Tahasildar and ALT again decided the Tenancy Case No. 107 of 1984. The ALT came to the conclusion that without issuing any notice on the Application under Section 32-O of the Act, the Application was decided within one day, and that the statement of the landlord was recorded before the ALT initially on 12/12/1975, thereafter Application was filed on 19/12/1975, statement of Petitioner was recorded and again additional statement of late Andappa was recorded. The ALT also proceeded on the basis that on that day the land had been mortgaged with the Maharashtra State Cooperative Land Development Bank, Solapur which Bank was the owner as on that day and the loan was repaid on 12/1/1982. In short, the ALT held that the entire proceedings under ::: Downloaded on - 09/06/2013 18:03:56 ::: 5 wp753.91 Section 32-O was vitiated and Certificate issue under Section 32-M was not correct. The ALT directed the Petitioner to hand over possession of the northern ½ portion of the land.
6. Aggrieved by this order, the Petitioner filed Tenancy Appeal No. 29 of 1988 before the S.D.O. The learned S.D.O. held that the order of the ALT to the extent it set aside the original order dated 19/12/1975 was illegal and without jurisdiction. Hence by Judgment and Order dated 22/7/1989 the learned S.D.O., Solapur allowed Tenancy Appeal No. 29 of 1988.
7. Aggrieved by this Order late Andappa filed Tenancy Revision Application No. 218 of 1989 before the MRT, Pune. The learned Member of the M.R.T., Pune has allowed the said Revision Application by impugned Order dated 31st October, 1990. The learned Member held that the Application filed by the late Andappa was not maintainable. However, the learned Member of MRT has thereafter held as under :
"It is true that there was no appeal against 32-O order passed on 19.12.1975 but no such appeal is required in case of nullity order. It is true that the application filed by deceased Andappa on 30.1.1984 u/s. 31, 33-B and 32-R of the B.T. & A.L. Act, is not tenable in itself for getting possession. The applicant u/s 31 is to be ::: Downloaded on - 09/06/2013 18:03:56 ::: 6 wp753.91 filed before 31.3.1957. The application u/s 33-B can be filed after obtaining exemption certificate. The application u/s 32-R is applicable only if the purchaser fails to cultivate the land personally and if the purchase had been made u/s. 32-O of the B.T. & A.L. Act. In such case, the purchaser would be evicted and the land shall be disposed off u/s. 84-C of the Tenancy Act. In such case, even direct possession cannot be demanded. So, the application for possession filed by the applicant u/s 31, 33-B and 32-R is not itself tenable in respect of possession to him. However, he has challenged the order passed u/s 32-O by pointing out that the order passed u/s 32-O was illegal and nullity. So, the order passed u/s. 32-O will have to be set aside and the matter will have to be remanded to the trial court to start fresh proceeding u/s. 32-O and to decide it according to law, Proceeding u/s 32-O can be started on application of any party or it cannot be started suo-motu u/s 32-P of the B.T. & A.L. Act. In the result, I pass the following order.
ORDER This revision application is allowed. Orders passed by both lower courts are set-aside and the matter be remanded to the trial court to start fresh proceeding u/s 32-O and to decide it accordingly. The original application for possession filed by deceased Andappa stands rejected. No order as to costs."
Aggrieved by this Order, the present Writ Petition has been filed and has been admitted on 11/2/1991.
SUBMISSIONS OF THE RESPECTIVE ADVOCATES :
8. At the hearing of the Petition, Advocates for Petitioner Mr. Shinde and Mr. Kulkarni advanced their submissions as under :
a) Since late Andappa had filed an Application under Section 31 r/w ::: Downloaded on - 09/06/2013 18:03:57 ::: 7 wp753.91 32 R, Andappa had obviously accepted the earlier Order under Section 32-O passed on 19/12/1975, and, hence, Andappa was estopped from claiming that the earlier order was obtained by fraud. Fraud is a question of fact and has to be pleaded. Fraud cannot be determined by authorities under the Act and can be determined only in Civil Suit.
b) In any case no fraud has been played. The statement of Andappa was recorded on 2 occasions and only thereafter the Order dated 19/12/1975 was passed. Andappa had accepted the said order and only after 9 years Andappa filed Application under Section 32R which indicates that the Order was not obtained by fraud nor was a nullity.
c) The learned Member of MRT was not justified in holding and had no jurisdiction to hold that the Order dated 19/12/1975 is a nullity.
According to them, no Appeal had been filed against that order, which had attained finality and in the absence of any appeal such an Order cannot be reopened and cannot be held to be a nullity.
d) The Authority which passed the original Order dated 19/12/1975 namely ALT had jurisdiction to pass the said Order and Application under Section 32-O r/w. 32-G of the Act was made and hence, the Order is ::: Downloaded on - 09/06/2013 18:03:57 ::: 8 wp753.91 passed within jurisdiction by the statutory authority and since order is passed within jurisdiction, it can never be construed to be nullity and, hence, the Order could not have been set aside by the MRT.
e) It is argued without prejudice that even if the Order dated 19/12/975 resumed to be an erroneous order, which in fact according to them is not erroneous, at the highest it will become a wrong order and will neither be a void order nor be a nullity and, hence, the learned Member of the MRT could not have reopened the said order nor could have directed the fresh enquiry about validity or otherwise of the said order. It is submitted that even void order has to be challenged in appropriate proceedings in appropriate time and even void order cannot be ignored by other courts or authorities even in collateral proceedings.
f) It was lastly urged that assuming again for the sake of argument that the Order dated 19/12/1975 is a nullity, unless and until the same is set aside by the appropriate proceedings, the same remains as a valid order and cannot be ignored. This argument was specifically advanced without prejudice to the earlier submissions.
g) In support of these submissions they relied upon the following ::: Downloaded on - 09/06/2013 18:03:57 ::: 9 wp753.91 Judgments :
(i) M. Meenakshi & ors. v/s. Metadin Agarwal & ors. and paragraphs 17 and 18 thereto were relied upon.1
(ii) Collector of Central Excise, Kanpur v/s. Flock (India) Pvt.Ltd.2 and paragraph 10 thereof was relied upon.
(iii) Pankaj Bhargava & Anr. v/s. Mohinder Nath & Anr.3and the observations in paragraphs 13, 16, 20 and 23 were relied upon.
(iv) Bhimrao Hanmant Patil(deceased) through Lrs. & ors. vs. Naganath Santoba Bubane & Anr. (A.M. Khanwilkar, J)4.
(v) Pandharinath Rambhau Kavitke v/s. Shaikh Hamaja Shaikh Husen (A.M. Khanwilkar, J)5 and the observations in paragraphs 9 to 11 thereof were relied upon.
(vi) Mahadu Bala Garade v/s Vijay Shridhar Mahajani (Sharad Manohar, J)6.
(vii) State of Punjab and ors. v/s. Gurdev Singh, Ashok Kumar and ors.7 Observations in paragraph-8 were relied upon.
9. On the other hand Mr. Londhe, Advocate for the Respondents advanced following submissions :
a) It is submitted that the Petitioner was the son of the sister of late Andappa and was serving in Railway and that by playing fraud on late Andappa the Petitioner had obtained the Order under Section 32G and Certificate under Section 32 M from the Tahasildar. That because of the 1 (2006) 7 SCC 470 2 (2000) 6 SCC 650 3 (1991) 1 SCC 556 4 2001 (1) Mh. L.J. 232.
5 2001(4) Mh. L.J. 43 6 1989 Mh. L. J. 883 7 AIR 1991 SC 2219 ::: Downloaded on - 09/06/2013 18:03:57 :::
10 wp753.91 inter se relationship the Petitioner stood in fiduciary capacity qua late Andappa and by misleading Andappa his statements were got recorded and fraud was played on him and the Tahasildar. Since the Order dated 19/12/1975 was obtained by fraud, the said order was nullity.
b) No notice of Application under Section 32-O was issued. Late Andappa was staying at village Tillehal which is more than 60 km. away from Solapur. The entire proceeding was concluded within one day which is humanly impossible.
c) He submitted that the Order dated 19/12/1975 was a nullity as the same had been obtained by fraud and, hence, late Andappa and thereafter his heirs were entitled to ignore such an Order and were also entitled to set up a plea of nullity of the Order in another proceedings including collateral proceedings. He therefore supported the order of MRT and prayed for dismissal of the Writ Petition.
CONSIDERATION OF SUBMISSIONS
10. Mr. Kulkarni is justified in relying on the provisions of Section 32R and pointing out that the Application of late Andappa was filed under ::: Downloaded on - 09/06/2013 18:03:57 ::: 11 wp753.91 that provision. Section 32 R of the Act reads thus :
"32R. If any time after the purchase of the land under any of the foregoing provisions, the purchaser fails to cultivate the land personally, he shall, unless the Collector condones such failure for sufficient reasons, be evicted and the land shall be disposed of in accordance with the provisions of section 84C."
11. Late Andappa has also referred to Section 33B of the Act.
However, reference to Section 33 B was obviously misnomer since an Application under Section 33 B can be filed only by certificated landlord who has obtained certificate under Section 88C. Thus the Application filed by the Respondent late Andappa was essentially an Application filed under Section 32 R and reference to Sections 31 and 33 B was a misnomer. In fact even the learned Member, MRT has held that the Application filed by Andappa is not maintainable. In my opinion, the said Application has been rightly dismissed and there is no need to interfere with that part of the operative order passed by the learned Member, MRT.
12. Consideration of the controversy involved in this Petition will however depend on the following 2 aspects namely (a) whether the Order dated 19/12/1975 passed by the ALT South Solapur in proceedings under Section 32 O can be held to have been obtained by practising fraud? (b) ::: Downloaded on - 09/06/2013 18:03:57 ::: 12 wp753.91 Whether the said order can be held to be a nullity? If the answer to the aforesaid question No. a or b is in favour of the Respondents even then the impugned order passed by the learned Member of MRT can be sustained.
13. Mr. Shinde and Mr. Kulkani, Advocates for Petitioner are justified in pointing out that plea of fraud is essentially a question of fact and also pointing out that the application was made after 9 years from the original order. However, merely because Application was filed after 9 years, that cannot legalise or validate action or order if it has been indeed obtained by fraud. The question is whether the Authorities exercising jurisdiction under the Act in proceedings arising out of an Application under Section 32 R could have gone into question as to whether the fraud is played or not. In my opinion, clear answer can be found in paragraph-6 of the Judgment of Mahadu Bala Garade (Sharad Manohar, J)(supra), which reads as under:
"6. The third point urged was that the 88-C certificate was received by the landlord by fraud and that, hence, the proceeding under section 33-B was vitiated.
Here, again, the point must be rejected. In the first place, the question whether the certificate was obtained by fraud or not is a question of fact and on that point none of the courts below has been persuaded to hold that the certificate was obtained by fraud. That apart, the point is that the mere remedy for a tenant to contend that ::: Downloaded on - 09/06/2013 18:03:57 ::: 13 wp753.91 the certificate was obtained by fraud is a suit in Civil Court. There is no provision under section 33-B empowering the Tenancy Court to adjudicate upon the question whether any particular order was obtained by any party by fraud. As is always held by this Court, the forum for agitating the question of fraud is the Civil Court: not the tenancy Court. A suit should have been filed by the tenant within the requisite period of limitation after he got the knowledge of the fraud, if any, for a declaration that the order obtained by the landlord dated 7th March, 1975 was a nullity on the ground that it was obtained by fraud. That plea would not be open for the present petitioner any more even in a suit, because the suit will be hopelessly barred by limitation by now. That plea cannot be allowed to be agitated in this writ petition."
14. Thus once it is held that fraud is a question of fact, it can be raised only in proceedings which are appropriately initiated for that purpose or before the Civil Court. In proceedings arising out of Application filed by late Andappa under Section 32-R, the Authorities under the Act could not have gone into the question as to whether the earlier Order dated 19/12/1975 had been obtained by fraud or not. Hence I answer the question (a) accordingly and hold that in these proceedings it was not open to the Authorities to go into the question as to whether the Order dated 19/12/1975 was obtained by fraud or not. I however, do not propose to foreclose the remedy of heirs of Late Andappa to challenge the said order on the ground that it was obtained by fraud either by filing an Appeal or by filing an application for setting aside the said Order. It would also be open to the Respondents to raise this question before the ::: Downloaded on - 09/06/2013 18:03:57 ::: 14 wp753.91 Civil Court by filing a Suit for appropriate reliefs. All the contentions of the respective parties in that behalf will have to be kept open and which are accordingly kept open.
15. It is however necessary to answer the question No. (b) as to whether the Order dated 19/12/1975 can be said to be a nullity. The consideration of this question will have to be divided in 2 parts. If an Order is obtained by playing fraud upon a statutory Authority it still becomes nullity.
However, as stated above, that question will have to be gone into either in an Appeal or in proceedings for setting aside the Order on the ground of fraud or in a Civil Suit and contentions in that regard will have to be kept open. Other circumstance in which an Order becomes nullity is where an Order is passed by an Authority which suffers from inherent lack of jurisdiction.
16. It is now necessary to consider whether the Order passed by the Tahasildar & ALT, South Solapur on 19/12/1975 was an Order which suffers from inherent lack of jurisdiction. I deem it necessary to refer to certain Judgments relied upon by Mr. Kulkarni, Advocate for Petitioner, as also certain other Judgments which were not cited at the bar.
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17. In the case of Kiran Singh and ors v/s. Chaman Paswan & ors. 8, the Supreme Court has observed in paragraph 6 as under :
"It is a fundamental principle well established that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties."
18. In Chiranjilal Shrilal Goenka v/s. Jasjit Singh & ors.9 the Supreme Court has observed in paragraph -18 as under :
"It is settled law that a decree passed by a court without jurisdiction on the subject-matter or on the grounds on which the decree made which goes to the root of its jurisdiction or lacks inherent jurisdiction is a coram non judice. A decree passed by such a court is a nullity and is non est. Its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage of execution or in collateral proceedings. The defect of jurisdiction strikes at the very authority of the court to pass decree which cannot be cured by consent or waiver of the party."
19. In M. Meenakshi (supra) the Supreme Court has observed in paragraphs 17 and 18 as under :
"17. The competent authority under the 1976 Act was not 8 AIR 1954 SC 340 9 (1993) 2 SCC 507 ::: Downloaded on - 09/06/2013 18:03:57 ::: 16 wp753.91 impleaded as a party in the suit. The orders passed by the competent authority therein could not have been the subject-matter thereof. The Plaintiff although being a person aggrieved could have questioned the validity of the said orders, did not chose to do so. Even if the orders passed by the competent authorities were bad in law, they were required to be set aside in an appropriate proceeding. They were not the subject matter of the said suit and the validity or otherwise of the said proceeding could not have been gone into therein and in any event for the first time in the Letters Patent Appeal.
18. It is a well-settled principle of law that even a void order is required to be set aside by a competent court of law inasmuch as an order may be void in respect of one person but may be valid in respect of another. A void order is necessarily not non est. An order cannot be declared to be void in a collateral proceeding and that too in absence of the authorities who were the authors thereof. The order passed by the authorities were not found to be wholly without jurisdiction. They were not, thus, nullities."
20. In Collector of Central Excise(supra) the Supreme Court has observed in paragraph-10 as under :
"10. Coming to the question that is raised there is little scope for doubt that in a case where an adjudicating authority has passed an order which is appealable under the statute and the party aggrieved did not choose to exercise the statutory right of filing an appeal, it is not open to the party to question the correctness of the order of the adjudicating authority subsequently by filing a claim for refund on the ground that the adjudicating authority had committed an error in passing his order. If this position is accepted then the provisions for adjudication in the Act and the Rules, the provision for appeal in the Act and the Rules will lose their relevance and the entire exercise will be rendered redundant. This position, in our view, will run counter to the scheme of the Act and will introduce an element of uncertainty in the entire process of levy and collection of exciseduty. Such a ::: Downloaded on - 09/06/2013 18:03:57 ::: 17 wp753.91 position cannot be countenanced. The view taken by us also gain support from the provision in sub-rule (3) of Rule 11 wherein it is laid down that where as a result of any order passed in appeal or revision under the Act, refund of any duty becomes due to any person, the proper officer, may refund the amount to such person without his having to make any claim in that behalf. The provision indicates the importance attached to an order of the appellate or revisional authority under the Act. Therefore, an order which is appealable under the Act is not challenged then the order is not liable to be questioned and the matter is not to be reopened in a proceeding for refund which, if we may term it so, is in the nature of execution of a decree/order."
21. In Pankaj Bhargava (supra) following observations of the Supreme Court in paragraphs 20 to 23 need to be noted :
"20. ........ Suffice it to say that in a collateral challenge the exercise is not the invalidation of a decision, but only to ascertain whether the decision "exists" in law at all and to rely upon incidents and effect of its "non-existence". The authority of decided cases is to the effect that the permission granted must be presumed to be valid till set aside. Doctrine of collateral challenge will not apply to a decision which is valid ex-hypothesi and which has some presumptive existence, validity and effect in law. Such a decision can be invalidated by the right person in right proceedings brought at the right time. It is only a nullity stemming from lack of inherent jurisdiction or a proceeding that wears the brand of invalidity of its forehead that might afford a defence even against enforcement. Shri Sachhar is right in his contention that such a collateral challenge may not be available where there is no lack of inherent jurisdiction but what is disputed is only the existence or non-existence of facts which though collateral to the merits do require investigation into and adjudication upon their existence or non-existence on the basis of evidence. If the parties before the Rent Controller have admitted that the fact or the event which gives the Controller jurisdiction is in existence and there was no reason for the Controller to doubt the bona fides of that admission as to a fact or event, the Controller is under no obligation to make further enquiries on his own as to that ::: Downloaded on - 09/06/2013 18:03:57 ::: 18 wp753.91 factual state. The test of jurisdiction over the subject matter is whether the court or Tribunal can decide the case at all and not whether the court has authority to issue a particular kind of order in the course of deciding the case.
21. A learned author says:
"A court is said to have jurisdiction of the subject matter of a particular controversy if the court has authority to hear and decide causes of a class to which the particular controversy belongs. In defining jurisdiction of the subject matter in these terms, the courts have emphasised that the jurisdiction of a court depends upon its right to decide the case and not upon the merits of its decision."
(See: Hugh B. Cox, "The Void Order and the Duty to Obey", .
22. The expressions 'void', 'voidable', 'nullity', as observed by the Lord Chancellor in London & Clyde side Estates Ltd. v. Aberdeen D.C. , may be misleading in so far as they are "supposed to present a court with the necessity of fitting a particular case into one or other of mutually exclusive and starkly contrasted compartments, compartments which in some cases (e.g. 'void' and 'voidable') are borrowed from the language of contract or status, and are not easily fitted to the requirements of administrative law." Some observations of the Lord Chancellor are again worth re-calling:
. .. In this appeal we are in the field of the rapidly developing jurisprudence of administrative law, and we are considering the effect of non-compliance by a statutory authority with the statutory requirements affecting the discharge of one of its functions...
When Parliament lays down a statutory requirement for the exercise of legal authority it expects its authority to be obeyed down to the minutest detail. But what the courts have to decide in a particular case is the legal consequence of non- compliance on the rights of the subject viewed in the light of a concrete state of facts and a continuing chain of events. It may be that what the courts are faced with is not so much a stark choice of alternatives but a spectrum of possibilities in which ::: Downloaded on - 09/06/2013 18:03:57 ::: 19 wp753.91 one compartment or description fades gradually into another.
At one end of this spectrum there may be cases in which a fundamental obligation may have been so outrageously and flagrantly ignored or defied that the subject may safely ignore what has been done and treat it as having no legal consequences upon himself. In such a case if the defaulting authority seeks to rely on its action it may be that the subject is entitled to use the defect in procedure simply as a shield or defence without having taken any positive action of his own....
But in a very great number of cases it may be in a majority of them, it may be necessary for a subject, in order to safeguard himself, to go to the court for declaration of his rights..."
(emphasis supplied)
23. The contention of Shri Rohtagi as to this particular remedy being available to a tenant in such circumstances is, in the ultimate analysis, not as sound as it might at first sight appear. The expression 'fraud on the statute' is merely a figurative description of a colourable transaction to evade the provisions of a statute and does not, for purposes of choice of the remedy, distinguish itself from the consequences of fraud as vitiating the permission Under Section 21 referred to in Vohra's case."
22. In Pandharinath Kavitke (supra) the learned Single Judge has observed thus in paragraphs 9 to 11 :
"9. Now coining back to the contention raised on behalf of the Respondent that since the order passed by the Tenancy Court on 15.7.1963 in proceedings under Section 32G was nullity, the appeal preferred by the Respondent in May 1983 against the said order, although beyond limitation, was maintainable, I am afraid the same deserves to be stated to be rejected. In my view, if this stand taken by the Respondent is rejected, as a necessary corollary the appeal preferred by the Respondent ought to have been dismissed on the ground that the same was hopelessly time barred. The learned Counsel for the Respondent had placed reliance on the Full Bench ::: Downloaded on - 09/06/2013 18:03:57 ::: 20 wp753.91 decision of this Court reported in (supra). In my view the Full Bench has answered the question which was referred for its consideration as to whether a Revenue Officer purports to do an act or pass an order which is invalid his action does not operate to raise a bar under Section 11 of the Bombay Revenue Jurisdiction Act. The observations made in the said judgment, which have been forcefully relied upon by the Respondent that the order if nullity, it is not necessary even to file an appeal against the said order. Relying on the head note of the said decision, it is further contended that in such situation the law of limitation would not apply to an appeal which challenges the order on the ground of nullity. I have already taken the view that the order passed by the Tenancy Court under Section 32G is not nullity. That part, this decision will have to be reconciled with the recent decision of the Apex Court which has been relied upon by the Petitioner in (supra). In the said decision, the Apex Court has taken the view that even though an order may be hypothetically nullity, the Court may refuse to quash it if the plaintiff had waived his right to challenge the same. It would be appropriate to reproduce paras 6 to 8 of the said decision, which reads thus:
Para 6. But nonetheless the impugned dismissal order has at least a de facto operation unless and until it is declared to be void or nullity by a competent body or Court. In Smith v. East Elloe Rural District Council Lord Redcliffe observed:
An order even if not made in good faith is still an act capable of legal consequences, it bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.
Para 7. Apropos to this principle, Prof. Wade states; "the principle must he equally true even where the "brand of invalidity" is plainly visible, for there also the order can effectively be resisted in law only by obtaining ::: Downloaded on - 09/06/2013 18:03:57 ::: 21 wp753.91 the decision of the Court (see : Administrative Law, 6thEd. p. 352) Prof. Wade sums up these principles:
"The truth of the matter is that the Court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances, the order may be hypothetically a nullity, but the Court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his right, or for some other legal reason. In any such the 'void' order remains effective and is in reality void. It follows that an order may be void for one purpose and valid for another, and that it may be void against one person but valid against another (ibid p. 352) Para 8. It will be clear from these principles, the party aggrieved by the invalidity of the order has to approach the Court for relief of declaration that the order against him is inoperative and not binding upon him. He must approach the Court within the prescribed period of limitation. If the statutory time limit expires the Court cannot give the declaration sought for.
The Apex Court has thus held that invalidity of the order, though plainly visible, it is necessary to take out necessary and appropriate proceedings to establish the case of invalidity and get it quashed, failing which the said order will remain as effective as any other valid order. In para 8 of the said decision the Apex Court has held that the person who claims the order to be nullity, must approach the Court within prescribed period of limitation, if that order is appealable one. That the person challenging the order to be invalid or nullity is thus under an obligation to challenge the said order by way of appeal within the prescribed period of limitation. In the circumstances it is no longer open for the Respondent to contend that since the order was nullity it was not necessary for the Respondent to challenge the same by way of appeal or that there ::: Downloaded on - 09/06/2013 18:03:57 ::: 22 wp753.91 would be no bar of limitation for filing the appeal which challenges the order to be nullity and without jurisdiction.
10. The other decisions relied upon by the Respondent to buttress his stand that it is well settled that a person can challenge the order to be nullity and without jurisdiction even in collateral proceedings, reliance was placed on the decision of the Apex Court reported in MANU/SC/0116/1954 : [1955]1SCR117 , (supra) and MANU/SC/0496/1993 : [1993]2SCR454 (supra). In both these decisions the Apex Court has held that it is well settled that decree passed by the Court without jurisdiction is a nullity and its invalidity could be set up whenever and wherever, it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. The argument of the Respondent is that if the invalidity of the order can be questioned in collateral proceedings it can surely be question by way of appeal even if filed beyond limitation. In my view, the above mentioned decision of the Apex Court in the matter of State of Punjab and Ors. v. Gurdev Singh, (supra), squarely deals with the question involved in the present case. In the circumstances the said contention will have to be rejected as the Apex Court has authoritatively held that a party aggrieved by the invalidity of the order has to approach the Court for relief of declaration that the order against him is inoperative and not binding upon him and that he must have approached the Court within the prescribed period of limitation. In other words, the Respondent was not only under obligation to challenge the validity of the order passed under Section 32G by filing an appeal but the said appeal ought to have been filed within limitation and not after a lapse of over 20 years, that too without giving any plausible explanation leave alone sufficient cause for condoning the delay of 20 years.
11. The view which I have been taken has already been considered by different Benches of this Court. In the case of Narhar Shamrao Deshpande v. Lakhu Raghu Dalvi, (Since deceased) through his heirs, Yeshwant Laxman and Anr., MANU/MH/0297/1983 :
1984(1)BomCR14 Justice R.D. Tulpule, as he then was, has dealt with similar contention and has rejected the same. In my view the said decision would squarely apply to the facts of the present case. In another decision in Madhavdas Damodardas Gujar and Ors. v. Mahadu Kern Raul, MANU/MH/0594/1993 : 1994(1)BomCR509 ::: Downloaded on - 09/06/2013 18:03:57 :::
23 wp753.91 following the aforesaid decision of Justice Tulpule, this Court has reiterated the said legal position. Another decision of Justice R.M. Lodha reported in has also held that the appeal filed against an order which is alleged to be null and void needs to be filed within limitation or at least sufficient cause should be shown for condoning the delay. There is one more decision of this Court which has considered this question and answered the same against the Respondent reported in MANU/MH/0158/2000 : 2000(2)BomCR90 of Justice D.G. Deshpande. In view of the consistent view taken by this Court, it is not open for me to take a different view and particularly because of the decision of the Apex Court referred to above. In the present case we have already noticed that neither the Appellate Court nor the Tribunal has examined the question of delay although vehemently raised on behalf of the petitioner, particularly when there was no formal application or formal order condoning the delay in filing the appeal. In other words, the Appellate Court acted without jurisdiction in deciding the appeal on merits without jurisdiction in deciding the appeal on merits without first condoning the delay. Unless the delay was condoned, the Appellate Court had no jurisdiction to entertain the appeal in law."
23. In State of Punjab (supra) the Supreme Court has observed thus in paragraph 8 :
"8. It will be clear from these principles, the party aggrieved by the invalidity of the order has to approach the Court for relief of declaration that the order against him is inoperative and not binding upon him. He must approach the Court within the prescribed period of limitation. If the statutory time limit expires the Court cannot give the declaration sought for."
24. Keeping in mind the aforesaid principles of law, it will have to be decided whether the Order dated 19/12/1975 can be held to be an Order ::: Downloaded on - 09/06/2013 18:03:57 ::: 24 wp753.91 passed by an Authority suffering from inherent lack of jurisdiction. The question whether the Order is a nullity on account of the fact that it has allegedly been obtained by fraud is a question left open for being adjudicated in appropriate proceedings, if the Respondents so desire.
However, the question as to whether Tahasildar and ALT, South Solapur suffers from inherent lack of jurisdiction while passing the Order dated 19/12/1975 must be answered against the Respondents and in favour of the Petitioners.
25. Section 70 of the Act provides for various duties of the Mamlatdar.
Relevant portion of Section 70(b) reads thus :-
Section 70 Duties of the Mamlatdar: for the purpose of this act, the following shall be the duties and functions to be performed by the Mamlatdar :
(a) .....
(b) To decide whether a person is, or was any time in the past, a tenant or protected tenant or a permanent tenant.
Thus the controversy involved in an Application under Section 32 O was clearly a controversy which fell within the scope of sub-clause (b) of Section 70 of the Act and the Mamlatdar & ALT, South Solapur was the statutory authority who was conferred with the jurisdiction to decide the question as to whether the Petitioner was a tenant in respect of the northern ½ portion of Gat No. 98 owned by Late Andappa. In view of this it cannot held that the Order passed on 19/12/1975 was an Order ::: Downloaded on - 09/06/2013 18:03:57 ::: 25 wp753.91 passed by an Authority suffering from inherent lack of jurisdiction and to that extent part of the question (b) will have to be answered in favour of the Petitioner and against the Respondents.
26. As an outcome of the aforesaid discussion, I pass the following order :
(i) Rule is made partly absolute. The impugned Judgment and Order passed by the learned Member of the M.R.T., Pune in Revision Application No. 218 of 1989 to the extent it holds that Tenancy Application No. 107 of 1984 filed by Late Andappa Walekar before the Tahasildar & ALT, South Solapur was liable to be rejected is not interfered with.
(ii) However, the impugned Order of the learned Member, M.R.T. to the extent the same allows the Revision Application and remands the matter to the Trial Court to start fresh proceedings under Section 32-O is quashed and set aside.
(iii) It is held that the Order dated 19/12/1975 did not suffer from inherent lack of jurisdiction in the Mamlatdar and ALT, South ::: Downloaded on - 09/06/2013 18:03:57 ::: 26 wp753.91 Solapur. It is however clarified that the question whether the said Order dated 19/12/1975 was a nullity on account of a fraud allegedly played on Late Andappa and the ALT is a question which is kept open for being agitated in appropriate proceedings either in the nature of an Appeal for challenging the said Order dated 19/12/1975 or in the nature of an Application for setting aside the said Order on the ground that it was obtained by fraud or in an appropriate proceedings before the Civil Court. All rival contentions of the Petitioner and Respondents about the alleged fraud are kept expressly open. Similarly all questions regarding limitation of any such proceedings are also kept open to be agitated before the appropriate Authorities/Court.
(iv) Rule is made partly absolute on the aforesaid terms with no order as to costs.
(GIRISH GODBOLE, J) ::: Downloaded on - 09/06/2013 18:03:57 :::