Gujarat High Court
Karmajyot Co-Operative Hosg. Society ... vs State Of Gujarat on 3 March, 2023
Author: A. S. Supehia
Bench: A.S. Supehia
C/SCA/2204/2004 CAV JUDGMENT DATED: 03/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO.2204 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
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1 Whether Reporters of Local Papers may be allowed to see the
judgment ? YES
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of law as to
the interpretation of the Constitution of India or any order made NO
thereunder ?
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KARMAJYOT CO-OPERATIVE HOSG. SOCIETY LTD & 1 other(s)
Versus
STATE OF GUJARAT & 6 other(s)
================================================================
Appearance:
MR BS PATEL, SENIOR ADVOCATE WITH MR.UMANG OZA, for the
Petitioner(s) No.1,2
MR JAYNEEL PARIKH, AGP for the Respondent(s) No. 1,2
MR SH SANJANWALA, SENIOR ADVOCATE with MR NK MAJMUDAR(430)
for the Respondent(s) No. 4,5,6,7
RULE SERVED BY DS for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 03/03/2023
CAV JUDGMENT
By way of the present writ petition filed under Articles 226 and 227 of the Constitution of India, the petitioners are seeking issuance of a writ of certiorari or direction quashing and setting aside the consent decree dated 24.08.2000 passed by the Civil Judge (S.D.), Vadodara in Special Civil Suit No.637 of 2000 for the entire land bearing Revenue Survey No.650, admeasuring 5,261 sq.mtr. between respondent Nos.4, 5 and Page 1 of 23 Downloaded on : Mon Mar 06 20:38:04 IST 2023 C/SCA/2204/2004 CAV JUDGMENT DATED: 03/03/2023 6 and also consent decree dated 17.05.2003 passed by the Civil Judge (S.D.), Vadodara in Regular Civil Suit No.538 of 2003 between respondent Nos.4, 5 and 7 and the petitioners also seeking direction directing respondent No.1 to incorporate the name of the petitioner-Society in the record of rights for the land bearing Revenue Survey No.650, admeasuring 1,440 sq.mtr., in pursuance to two registered sale deeds dated 10.12.1985.
FACTS The petitioner No.1 is a registered society registered under the provisions of the Gujarat Co-operative Societies Act, 1961 ("the Act" for short) for the purpose of construction of the residential units for its members. Originally, respondent No.4 was holding the agricultural land bearing Revenue Survey No.650 in the sim of Village Gotri, Dist. Vadodara.
2.1) The respondent No.4 had filed a declaration form before the competent authority and Additional Collector, Vadodara under the provisions of the Urban Land (Ceiling and Regulations) Act, 1976 (for short "the Act"). After process of the form, the authority disposed of the declaration form by the order dated 30.03.1991. The limit under the ULC Act was 1,500 sq.mtr. and hence, 3,861 sq.mtr. land was declared as surplus and was vested in the State Government, while remaining 1,440 Page 2 of 23 Downloaded on : Mon Mar 06 20:38:04 IST 2023 C/SCA/2204/2004 CAV JUDGMENT DATED: 03/03/2023 sq.mtr. land was declared in the holding of respondent no.4.
2.2) Respondent no.4 executed two sale deeds in favour of the petitioner on 10.11.1985 with regard to the 1,440 Sq.mts of land. Thus, the petitioner-Society became the owner of only 1,440 sq.mtr. of the land as per the sale deeds. The petitioner-
Society wanted to put up a big scheme, and hence, was in need of excess land, as a result of which the petitioner-Society requested the respondent No.1-State for granting excess land to the petitioner-Society under Section 23 of the ULC Act, but the same could not be crystallized and the respondent No.1 earmarked the land for the Vadodara Municipal Corporation (VMC) for E.W.S. Scheme. The land, admeasuring 1440 sq.mtr. was running in the name of respondent No.4. The respondent No.1 had taken possession of the land on 02.11.1985.
2.3) The respondent No.5, instituted Special Civil Suit No.637 of 2000 before the Court of Civil Judge (S.D.), Vadodara for the entire land bearing Revenue Survey No.650, admeasuring 5,261 sq.mtr. of land, out of which 1,440 sq.mtr. land has been purchased by the petitioner No.1 and the rest of the land is vested with the Government. The said suit was instituted for specific performance of the contract relating to the entire land purchased by the petitioner-Society. On 18.08.2000, a compromise pursis was submitted before the Civil Judge Page 3 of 23 Downloaded on : Mon Mar 06 20:38:04 IST 2023 C/SCA/2204/2004 CAV JUDGMENT DATED: 03/03/2023 (S.D.), Vadodara and on 24.08.2000 a decree in terms of compromise was passed for execution of the sale deeds. The petitioner-Society was not made a party to the aforesaid suit.
2.4) On being aware about the same, the petitioner-Society filed Review Application No.301 of 2000 before Civil Judge (S.D.), Vadodara pointing out all the facts, wherein, after hearing both the sides, vide order dated 17.09.2003, the said application was dismissed on the ground that the petitioner-Society was not a party in Special Civil Suit No.637 of 2000, even though the petitioner-Society pointed out the ownership of the concerned land.
2.5) During pendency of Review Application No.301 of 2000, the respondent no.7 instituted Regular Civil Suit No.535 of 2003 in the Court of Civil Judge, Vadodara on 15.05.2003, and within two days of institution of the suit, i.e. on 17.05.2003 with the consent of respondent nos.5, 6 and 7, the suit was decreed in favour of the respondent no.7 and he was declared as owner by adverse possession.
2.6) The aforesaid suit was instituted on 15.05.2003 and the decree on compromise pursis was passed on 17.05.2003 affecting the land belonging to the petitioner-Society and the land belonging to the Government. It is the case of the petitioner that neither the concerned Court cared to consider the mischief played by the respondent Nos.4 to 7 nor the Page 4 of 23 Downloaded on : Mon Mar 06 20:38:04 IST 2023 C/SCA/2204/2004 CAV JUDGMENT DATED: 03/03/2023 respondent No.3 thought it fit to bring to the notice either to the petitioner-Society or the Government since in the decree, the land vested with the Government was also covered. It is alleged that conveniently and mala fidely bifurcating the decree, the name of the respondent No.7 has been shown in the record of rights. Hence, the petitioner-Society was constrained to institute Regular Civil Suit No.159 of 2004 as the other side was trying to take law in their own hands and asked for stay. The Civil Judge issued notice but on the order passed by the Civil Judge (S.D.), Vadodara, the Commissioner has been appointed, who has drawn a panchnama on 12.02.2004.
SUBMISSIONS OF THE PETITIONERS Learned Senior Advocate Mr.B.S.Patel appearing for the petitioners has, at the outset, contended that the private respondents, with connivance with each other, have played fraud with the Courts below and have obtained consent decrees in their favour, hence, suitable directions may be issued for registration of a criminal offence against them.
3.1) Learned Senior Advocate has submitted that the respondent No.5 instituted Special Civil Suit No.637 of 2000 in the Court of Civil Judge (S.D.), Vadodara for specific performance of the contract for the entire land of respondent No.4 on the basis of Page 5 of 23 Downloaded on : Mon Mar 06 20:38:04 IST 2023 C/SCA/2204/2004 CAV JUDGMENT DATED: 03/03/2023 agreement to sell, in which not a single rupee had been paid by cheque and a compromise pursis dated 18.08.2000 has been executed, which was produced in the Court on 24.08.2000.
3.2) Learned Senior Advocate contended that the suit was for the entire land, out of which 3,861 sq.mtrs. land had been vested in the Government, hence an application under section 23 of the ULC Act was filed by the petitioner-Society, which was rejected. The land has been handed over by the Government to the VMC and a building has been constructed. The suit was required to be instituted as per the provisions of Section 135 of the Gujarat Land Revenue Code, 1879 by annexing the record of right but the same was not done intentionally.
3.3) Learned Senior Advocate Mr.Patel has submitted that the respondent No.4 executed a sale deed as early as on 10.12.1985, and the petitioner became the owner but was not made a party to the suit and respondent No.4 did not disclose that he had executed a sale deed. It is submitted that the Court, without verifying the compromise deed and ignorant of the mischief played by respondent Nos.4 and 5 jointly, passed a decree.
3.4) Learned Senior Advocate has contended that on 30.12.2000 the petitioner filed Revision Application No.301 of 2000 in Special Civil Suit No.637 of 2000, which was dismissed by Page 6 of 23 Downloaded on : Mon Mar 06 20:38:04 IST 2023 C/SCA/2204/2004 CAV JUDGMENT DATED: 03/03/2023 Civil Judge vide order dated 17.09.2003. Thereafter, on 15.05.2003 respondent No.7 - Maheshbhai Ramanbhai patel instituted Regular Civil Suit No.535 of 2003 in the Court of Civil Judge, Vadodara and on 17.05.2003 i.e. within two days of institution of the suit, with the consent of respondent Nos.5, 6 and 7, respondent No.7 was declared as owner by adverse possession.
3.5) Learned Senior Advocate Mr.Patel has submitted that the petitioners filed the captioned petition and requested for interim stay, which has been granted vide order dated 22.12.2004 and certain directions were issued by this Court directing the District Collector, Vadodara to inquire and submit a report and no complaint be filed by the Collector, without previous permission of the Court. It is submitted that a finding of a case of fraud was found by the District Collector.
3.6) In support of his submissions, learned Senior Advocate Mr.B.S.Patel has placed reliance on the judgements of the Apex Court in the cases of Badami Vs. Bhali, (2012) 11 S.C.C. 574, Deoki Panjhiyara Vs. Shashi Bhushan Narayan Azad and Anr., (2013) 2 S.C.C. 137 and Raj Shri Agarwal @ Ram Shri Agarwal and Anr. Vs. Sudheer Mohan and Ors., 2022 LiveLaw (SC) 864.
Page 7 of 23 Downloaded on : Mon Mar 06 20:38:04 IST 2023C/SCA/2204/2004 CAV JUDGMENT DATED: 03/03/2023 SUBMISSIONS OF RESPONDENT NO.7:
Learned senior advocate Mr.Sanjanwala appearing on behalf of the respondent No.7 has submitted that the report of the Civil Judge clearly exonerates the respondent No.7 by holding that he is not a party to the fraud and report of the District Collector also does not implicate the respondent No.7 and hence, no action may be taken against him. It is submitted that the present writ petition is not maintainable as it is an admitted position of law that when two sale deeds were executed in favour of the petitioner-Society, it was only a proposed society in the year 1985 and it was only registered on 10.10.1990 and, therefore, the petitioners have no interest in the land and there is no cause of action to file the present writ petition. It is submitted that if any order is passed by this Court or any reports are filed by the Civil Judge or the Collector, they are also nullity and they cannot form the basis of launching prosecution against the private respondents. It is submitted that the sale deed itself is void and in fact, in the registration certificate of the year 1990, the land in question is not mentioned. It is further submitted that the respondent No.7 filed Civil Application No.1 of 2018 taking up a preliminary contention that the writ petition challenging the consent decree of the Civil Court is not maintainable.Page 8 of 23 Downloaded on : Mon Mar 06 20:38:04 IST 2023
C/SCA/2204/2004 CAV JUDGMENT DATED: 03/03/2023
4.1) Learned senior advocate Mr.Sanjanwala, in support of his submissions, has placed reliance on the judgements of the Apex Court in the cases of Radhe Shyam and Anr. Vs. Chhabi Nath and Ors., (2015) 5 S.C.C. 423, R.Janakiammal Vs. S.K.Kumarasamy and Ors., (2021) 9 S.C.C. 114 and Pushpa Devi Bhagat Vs. Rajinder Singh and Ors., (2006) 5 S.C.C.
566. He has also placed reliance on the judgement dated 06.08.2021 passed by this Court in Special Civil Application No.6912 of 2017 and allied matters in the case of Bhogilal Parsottamdas Patel Vs.Legal Heirs of Badriprasad Poonamchand Agrawal and Ors.
SUBMISSION OF LEARNED AGP Learned AGP has adopted the contentions raised by learned Senior Advocate Mr.B.S.Patel. It is submitted that pursuant to the interim order passed by this Court the District Collector has made a detailed inquiry and a report dated 11.01.2017 has been placed on record. It is submitted that the private respondents have committed fraud with the Court and the land belonging to the government and the petitioner-Society has been usurped by obtaining consent decrees. It is urged by the learned AGP that liberty may be given to the District Collector, Vadodara to file a criminal complaint against the guilty persons.
Page 9 of 23 Downloaded on : Mon Mar 06 20:38:04 IST 2023C/SCA/2204/2004 CAV JUDGMENT DATED: 03/03/2023 CONCLUSION Before, I delve into the merits of the matter, it will be apposite to incorporate the relevant directions issued by this Court issued vide interim-order dated 22.12.2004. The same are as under:
"2. Today, as recorded hereinabove, affidavit in reply has been filed on behalf of the respondent No.7. Primafacie, it appears that there is no dispute on the point that the total land held by the petitioner was admeasuring 5261 Sq.Mtrs bearing S.No.650 out of which the land admeasuring 4221 Sq.Mtrs was declared as surplus land under Urban Land (Ceiling & Regulation) Act, 1976 and the land admeasuring 1446 Sq.Mtrs was held as retainable land for the original owner-Pratapsinh Dahyabhai Parmar-the respondent No.4 herein. It is also admitted position that a registered sale deed is executed in favour of the petitioner-society for the land admeasuring 1440 Sq.Mtrs which was clear land and the said sale deed is executed by the Power of Attorney of the respondent No.4. However, the stand of the respondent No.4 in the affidavit in reply is that the society was a proposed society and it was not an agriculturist and therefore the transaction can be said as illegal. It is also the case of the respondent No.7 in the affidavit in reply that the transaction of sale can be said as invalid in view of the provisions of section 63 of the Bombay Tenancy & Agricultural Lands Act. It is also an admitted position that no competent authority under the Tenancy Act has declared the transaction entered into by way of registered sale deed as null and void. Further, from the record it it is apparent that the first suit was filed for the total area of the land admeasuring 5261 Sq.Mtrs which includes the land which is declared as surplus land. Thereafter, the suit is filed for the area of land admeasuring 1440 Sq.Mtrs which is declared as retainable land. The consent purshis is filed in both the suits and it is required to be noted that when the petitioner moved the application for recalling of the order for consent decree in the first suit, i.e. Spl.Civil Suit No.637/00 another suit being Reg.Civil Suit No.538/03 is filed and another consent purshis is submitted. Primafacie, it appears that it is a design to frustrate the rights of the State Govt over the land which is declared as surplus land and the rights of the petitioner herein over the land which is purchased by the petitioner by registered sale deed. Neither the State Govt nor the petitioner is impleaded as party in the said suit and on the basis of the said consent decree the rights are sought to be frustrated. Primafacie, it appears that it is a designed adopted to frustrate the rights of the parties over the property which were in existence as per the provisions of Page 10 of 23 Downloaded on : Mon Mar 06 20:38:04 IST 2023 C/SCA/2204/2004 CAV JUDGMENT DATED: 03/03/2023 Transfer of Property Act and as per the provisions of ULC Act. Unfortunately, application was made to the learned judge but the same is rejected. In a matter where fraud is primafacie played before the civil court while getting the consent decree it would be a case for interference under the supervisory jurisdiction of this court under Article 226/227 of the Constitution of India. Merely because an appeal is not preferred against the consent decree or application for recalling of the order or fresh suit is not filed in my view should not operate as a bar for exercising the power of this court. Reference may be made to the decision of this court in the matter of United India Insurance Co.Ltd vs Rajendra Singh & Ors reported in AIR 2000 SC 1165 wherein at para 3 and 4 the Apex Court observed as under:
"3. Fraud and justice never dwell together.(Frans etjus nunquam cohabitant) is pristine maxim which has never lost its temper over all these centuries. Lord Denning observed in a language without equivocation that 'no judgment of a court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for, fraud unravels everything.'(Lazarus Estate Ltd vs Beasley 1956 (1) QB 702).
4. For a High Court in India to say that it has no power even to consider the contention that the awards secured are the byproducts of stark fraud played on a tribunal, the plenary power conferred on the High Court by the Constitution may become a mirage and people's faith in the efficacy of the High Courts would corrode. We would have appreciated if the Tribunal or at least the High Court had considered the plea and found them unsustainable on merits, if they are meritless. But when the courts preempted the Insurance Company by slamming the doors against them, this court has to step in and salvage the situation."
Therefore, the contention that as the appeal is not preferred or as the suit for setting aside of the consent decree is not filed this court may not exercise the power in writ jurisdiction can not be accepted.
3. In view of the above, I am inclined to pass the following order:
(i) Rule.
(ii) By interim order the operation and implementation of both the consent decrees passed in Special C.S.No.637/00 and Reg.C.S.No.538/03 shall remain stayed and suspended.
(iii) It is further directed that the Ld.Civil Judge (SD), Baroda shall hold inquiry regarding alleged fraud played by the parties to the proceedings of the aforesaid suits and the persons who are directly or indirectly connected and shall complete such inquiry after giving opportunity to all concerned and shall report to this court within a period of six months from today. After the Page 11 of 23 Downloaded on : Mon Mar 06 20:38:04 IST 2023 C/SCA/2204/2004 CAV JUDGMENT DATED: 03/03/2023 report is submitted to this court it would be open to either side to move this court for further orders and/or for final hearing of the matter.
(iv) The District Collector, Vadodara shall also additionally examine the matter qua the rights of the Govt in respect of land which is declared as surplus land under ULC Act and shall also examine as to whether the action in accordance with law should be taken including for initiating prosecution against the persons who have made an attempt to frustrate the rights.
However, before taking any final action for lodging of prosecution or otherwise, report shall be made to this court and after appropriate permission is obtained from this court the action shall be taken.
DS for respondent Nos.1,2 & 3 permitted."
While issuing the direction, as mentioned hereinabove, at the time of issuance of Rule, the Coordinate bench of this Court directed the Senior Civil Judge, Vadodara to hold an inquiry regarding the alleged fraud played by the parties to the proceedings. The District Collector, Vadodara was also additionally directed to examine the matter qua the rights of the Government in respect of the land. Finally, it was observed that the registration or lodging of the prosecution shall be done after appropriate permission is obtained from this Court. In the aforesaid order, the Court has specifically observed that the matter, where a fraud has been committed before the Civil Court by obtaining the consent decree, it would be the case of interference under the supervisory jurisdiction of this Court under Articles 226 and 227 of the Constitution of India.
Page 12 of 23 Downloaded on : Mon Mar 06 20:38:04 IST 2023C/SCA/2204/2004 CAV JUDGMENT DATED: 03/03/2023 The Coordinate Bench of this Court has also placed reliance on the judgment of the Supreme Court in the case of United India Insurance Company Limited Vs. Rajendra Singh & Ors., AIR 2000 S.C.C. 1165. The aforesaid interim order has become final and has not been challenged by the respondents before any higher forum. Pursuant to the aforesaid order, the In-Charge Principal Senior Civil Judge, Vadodara has prepared a report, which was forwarded to this Court. The aforesaid report dated 02.01.2006 prepared by In-Charge Principal Civil Judge, Vadodara, clearly indicates that the fraud has been committed in the proceedings of Special Civil Suit No.637 of 2000. In-Charge Principal Civil Judge has observed thus:
"14. Thus, looking to the statements of all the witnesses and the original record of the aforesaid two suit, it is prima facie transpired that though the land of Survey No.650 admeasuring 3821 Square Meter was declared as the surplus land and the remaining land admeasuring 1440 Square Meter was handed over to the owner of the land of Survey No.650 situated at Village Laxmipura by the order of the Competent Authority & Additional Collector, ULC, Vadodara. Mr.Pratapsingh Dahyabhai Parmar, who is the defendant no.1 in Special Civil Suit No.637-2000 suppressed the said fact in the proceedings of Special Civil Suit No.637-2000 and he submitted compromise Pursish in the Court and in the Compromise Purshish, he has not disclosed the fact that the land of Survey No.650 admeasuring 3821 Square Meter is declared as the surplus land and handed over the possession of the said land to the Representative of the Government on 2/11/1985. It also appears that though Rajnikant Jashbhai Brahmbhatt, the Power of Attorney of Pratapsingh Dahyabhai Parmar sold the land of Revenue Survey No.650 admeasuring 1440 Square Meter to Karma Jyot Cooperative Housing Society, the defendant no.1, Pratapsingh Dahyabhai Parmar had not mentioned the said fact in the Compromise submitted in Special Civil Suit No.637-2000. Thus, Pratapsingh Dahyabhai Parmar, the defendant no.1 of Special Civil Suit No.637-2000 has committed Page 13 of 23 Downloaded on : Mon Mar 06 20:38:04 IST 2023 C/SCA/2204/2004 CAV JUDGMENT DATED: 03/03/2023 fraud in the proceedings of Special Civil Suit No.637-00. It also appears that Rajnikant Jashbhai Brahmbhatt had sold the land of Revenue Survey No.650 admeasuring 1440 Square Meter to Karma Jyot Cooperative Housing Society before he submitted the compromise in Regular Civil Suit No.535/03, he did not disclose the said fact in the compromise of Regular Civil Suit No.535-03. Thus, Mr.Rajnibhai Jashbhai Brahmbhatt has committed fraud in the proceedings of Regular Civil Suit No.535/2003. Thus, Pratapsingh Dahyabhai Parmar, the defendant no.1 of Special Civil Suit No.637/2000 and Rajnibhai Jashbhai Brahmbhatt, the Power of Attorney of Pratapsingh Dahyabhai Parmar, the defendant no.1 of Regular Civil Suit No.535/2003 have committed fraud in the proceedings of the aforesaid two suits. I request your Honour to place this Report before the Hon'ble Mr.Justice Jayant Patel for perusal and oblige."
The District Collector, Vadodara has also prepared a report dated 11.01.2017, which was also ordered to be taken on record. The perusal of the aforesaid report reveals that the District Collector, Vadodara has specifically held that the fraud has been committed by the respondents with the Court in Special Civil Suit No.637 of 2000 and the Court has been misdirected by the concerned respondents. The District Collector, Vadodara has also sought permission to initiate criminal proceedings against the perpetrators. It is not in dispute that the report was made available to the concerned respondents and accordingly, the respondent no.7 has filed affidavit-in-reply dated 21.04.2017. It is alleged that the report has been prepared behind the back of the respondent No.7. After the aforesaid reports were tendered to the respondent no.7, further affidavit-in-reply dated 06.05.2018 has been filed by him specifically stating that he has not committed any fraud Page 14 of 23 Downloaded on : Mon Mar 06 20:38:04 IST 2023 C/SCA/2204/2004 CAV JUDGMENT DATED: 03/03/2023 to usurp the Government land and he has not dealt with the 1,440 sq.mtrs. of land. It is specifically stated by him that the dispute regarding the private land of 1,440 sq.mtrs. is only between the society and him and the State Government has nothing to do with him. Thus, it is finally stated that there is no question of filing any prosecution against him. From the aforesaid affidavit, thus, it can be said that ample opportunity was given to the respondents to peruse the aforesaid reports. From the pleadings and the documents on record, it is established that the consent decree has been obtained by the defendant no.1 - Pratapbhai Dahyabhai Parmar in Special Civil Suit No.637 of 2000. Shri Rajnikant Jashbhai Brahmbhatt also sold the land being revenue no.650, admeasuring 1,440 sq.mtrs. to Karmajyot Cooperative Housing Society before he submitted the compromise in Regular Civil Suit No.535 of 2003, but he did not disclose the said fact in the compromise of Regular Civil Suit No.535 of 2003. It is interesting to note that Shri Pratapbhai Dahyabhai Parmar - defendant no.1 of Special Civil Suit No.637 of 2000 and Shri Rajnikant Jashbhai Brahmbhatt is the Power of Attorney of Pratapbhai Dahyabhai Parmar i.e. the defendant no.1 of Revenue Civil Suit No.535 of 2003.
Page 15 of 23 Downloaded on : Mon Mar 06 20:38:04 IST 2023C/SCA/2204/2004 CAV JUDGMENT DATED: 03/03/2023 Both the aforesaid reports reveal that two regular Civil Suits were filed being Special Civil Suit No.637 of 2000 and Regular Civil Suit No.535 of 2003, in which the decrees have been obtained on the basis of the compromise entered behind the back of the petitioner-Society. Presently, the sole issue which requires to be considered is whether the consent decree, which is obtained by fraud and nullity can be set-aside by this Court in wake of the aforesaid undisputed facts. It is not in dispute that the petitioner had approached the very Court for recalling the decree, which was passed on the basis of consent. However, the same was rejected by the Civil Court on the ground that it is not maintainable as the society was not a party to the proceedings.
The respondents have also contended that the writ-petition is not maintainable as it was filed by the petitioner-Society, which was unregistered at the relevant time and it can be said that the same is non-existence. As noticed above, the writ-petition was admitted after hearing the necessary parties and after passing the interim order in the year 2004. The contention of the private respondents with regard to the non-maintainability of the writ petitioner was also not accepted. The aforesaid interim-order has not been assailed by the private-respondents before any forum. It is pertinent to note that the respondent Page 16 of 23 Downloaded on : Mon Mar 06 20:38:04 IST 2023 C/SCA/2204/2004 CAV JUDGMENT DATED: 03/03/2023 No.7 had also filed Civil Application No.1 of 2018 seeking dismissing of the writ petition on the ground of non- maintainability of the writ petition, which was simply withdrawn by him on 21.12.2018. Thus, the petitioners cannot, at this stage, thrown out on the ground of non-maintainability of the petition since the Court had not kept the said issue open. Thus, at this stage, after passage of more than 18 years, the petitioner cannot be relegated to avail an alternative remedy. It is well settled preposition of law that existence of alternative remedy is not a bar to the powers of this Court under Articles 226 and 227 of the Constitution of India. The Co-ordinate Bench, in the interim order dated 22.12.2004 has specifically recorded the objections of the respondent no.4 with regard to non-maintainability of the petition by the proposed the petitioner-Society and has rejected such objection. Thus, the contention raised by the respondents with regard to the non- maintainability of the petition does not merit acceptance.
The respondents have placed reliance on the judgment of this Court in the case of Sanskruti Infra Developers Private Limited vs. Sanjay Jayantilal Jain (supra) and have contended that the consent decree, which is obtained by fraud can only be set- aside by filing appropriate proceedings before the concerned Court, which recorded compromise. Reliance is also placed in Page 17 of 23 Downloaded on : Mon Mar 06 20:38:04 IST 2023 C/SCA/2204/2004 CAV JUDGMENT DATED: 03/03/2023 case of R. Janakiammal Vs. S.K.Kumarasamy (supra) and in the case of Pushpadevi Bhagat Vs. Rajinder Singh & Ors. In this regard, I may with profit refer to the decision in the case of Satluj Jal Vidhyut Vs. Raj Kumar Rajinder Singh, 2019 (14) S.C.C. 449, wherein the Supreme Court has observed thus:
"75. In A.V Papayya Sastry v. State of A.P33, this Court as to the effect of fraud on the judgment or order observed thus: (SCC pp. 231 & 236-31, paras 21-22 & 38-39) "21. Now, it is well-settled principle of law that if any judgment or order is obtaied by fraud, it cannot be said to be a judgment or order in law. Before three centuries, Chief Justice Edward Coke proclaimed:
'Fraud avoids all judicial acts, ecclesiastical or temporal.'
22. lt is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the court, tribunal or authority is a nullity and non est in the eye of the law. Such a judgment, decree or order-by the first court or by the final court-has to be treated as nullity by every court, superior or inferior. It can be challenged in any court, at any time, in appeal, revision, writ or even in collateral proceedings.
38. The matter can be looked at from a different angle as well. Suppose, a casé is decided by a competent court of law after hearing the parties and an order is passed in favour of the plaintiff applicant which is upheld by all the courts including the final court. Let us also think of a case where this Court does not dismiss special leave petition but after granting leave decides the appeal finally by recording reasons. Such order can truly be said to be ajudgment to which Article 141 of the Constitution applies. Likewise, the doctrine of merger also gets attracted. All orders passed by the courts/authorities below, therefore, merge in the judgmentof this Court and after such judgment it is not open to any party to the judgment to approach any Court or authority to review, recall or reconsider the order.
39. 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 a nullity, whether by the Court of first Page 18 of 23 Downloaded on : Mon Mar 06 20:38:04 IST 2023 C/SCA/2204/2004 CAV JUDGMENT DATED: 03/03/2023 instance or by the final court. And it has to be treated as non est by every Court, superior or inferior."
Supervisory jurisdiction of the Court can be exercised in case of error apparent on the face of the record, abuse of process and if the issue goes to the root of the matter.
76. In S.P.Chengalvaraya Naidu Vs.Jagannath, this Court noted that the issue of fraud goes to the root of the matter and it exercised powers under Article 136 to cure the defect. The Court observed: (SCC p. 3, paras 5-6) "5.The High Court, in our view, fell into patent error. The short question before this High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the Court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that "there is no legal duty cast upon the plaintiff to come to court With a true case and prove it by true evidence'. 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, the process of the court is being abused. Property-grabbers, tax-evaders, bank loan-dodgers and other 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 the litigation.
6. The facts of the present case leave no manner of doubt that Jagannath obtained the preliminary decree by playing fraud on the court. 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. Jagannath was working as a clerk with Chunilal Sowcar. He purchased the property in the court auction on behalf of Chunilal Sowcar. He had, on his own violation, executed the registered release deed (Exh. B-15) in favour of Chunilal Sowcar regarding the property in dispute. He knew that the appellants had paid the total decretal amount to his master Chunilal Sowcar. Without disclosing all these facts, he filed the suit for the partition of the property on the ground that he had purchased the property on his own behalf and not on behalf of Chunilal Sowcar. Non-production and even non-mentioning of the release deed at the trial is tantamount to playing fraud on the court. We do not agree with the observations of the High Court that the appellant - defendants could have easily produced the certified registered copy of Ext.B- 15 and non suited the plaintiff. A litigant, who approaches the court, is bound Page 19 of 23 Downloaded on : Mon Mar 06 20:38:04 IST 2023 C/SCA/2204/2004 CAV JUDGMENT DATED: 03/03/2023 to produce all the documetns executed buy him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party."
77. In K.K.Modi Vs. K.N.Modi, it was observed that one of the examples cited as an abuse of the process of the court is re-litigation. It is an abuse of the process of the court and contrary to justice and public policy for a party to re- litigate the same issue which has already been tried and decided earlier against him."
The Apex Court in the case of Satluj Jal Vidyut (supra) has summarized the position of law while considering the judgment in the case of A.V. Papayya Sastry vs. State of A.P. (supra), and it is held that "the judgment, decree or order obtained by playing fraud on the Court, tribunal or authority is nullity and such judgment, decree or order can be challenged in any Court at any time in appeal, writ, revision or even in collateral proceedings". Thus, this Court in the present writ petition is empowered to quash and set aside the consent decrees obtained by fraud by invoking the inherent powers conferred under Articles 226 and 227 of the Constitution of India. In the case of S.P. Chengalvaraya Naidu (supra), the Apex Court has held that a person, who has committed fraud and has used the Court process a convenient lever to retain the illegal gains indefinitely and whose case is based on falsehood, has no right to approach the Court and he can be summarily thrown out at any stage of litigation. It is further held that the principle of 'finality of litigation' cannot be pressed to the extent of such Page 20 of 23 Downloaded on : Mon Mar 06 20:38:04 IST 2023 C/SCA/2204/2004 CAV JUDGMENT DATED: 03/03/2023 an absurdity that it becomes an engine of fraud in the hands of dishonest litigants and the Courts of law are meant for imparting justice between the parties. Thus, at this stage, after lapse of 22 years, if this Court relegates the petitioners to avail the remedy for filing the suit by setting aside the decree, which is obtained through fraud and is nullity in the eyes of law, the same would be against the principle of finality of litigation and this Court cannot shut its eyes to the fraud committed by the present respondents before the Court of law and by doing so, the Court in fact would be giving lever to perpetrators by pushing the petitioner into further litigation, which in fact they desire. Thus, in view of the law enunciated by the Apex Court, the decision of the Division Bench of this Court in case of Sanskruti Infra Developers Private Limited (supra) on which the reliance is placed by the respondent no.7 pales into insignificance. Respondent no.7 has also placed reliance on the decision of the Apex Court in case of Pushpa Devi Bhagat (supra) which has been relied upon by the Division Bench, however the same cannot come to his rescue, since in the said case before the Apex Court, the issue with regard to consent decree having been obtained by perpetrating fraud was absolutely absent.
Page 21 of 23 Downloaded on : Mon Mar 06 20:38:04 IST 2023C/SCA/2204/2004 CAV JUDGMENT DATED: 03/03/2023 The writ-petition succeeds in terms of the prayers made in therein. The consent decrees dated 24.8.2000 passed in Special Civil Suit No.637 of 2000 and 17.05.2003 in Regular Civil Suit No.538 of 2003 are quashed and set aside. Any action taken pursuant to the aforesaid consent decrees against the petitioner-Society is also quashed and set aside.
It is trite that "Ex injuria jus non oritur. Law (or right) does not arise from injustice. A legal right or entitlement cannot arise from an unlawful act or omission. When a fact arises from an illegal or unlawful acts or omissions, it cannot form the basis of law or legal rights, even if it is public or prominent. The persons violating the law cannot be permitted to urge that their offence cannot be subjected to inquiry, trial or investigation.
Vide interim order dated 22.12.2004, this Court had directed that no prosecution should be registered before the prior permission of this Court, in case any fraud is established in the reports filed before this Court by the In-Charge Principal Senior Civil Judge as well as the District Collector. Since both the reports indicate that fraud has been perpetrated by the persons named therein, the appropriate officer as authorized by the Court of the Principal Senior Civil Judge, Vadodara and Page 22 of 23 Downloaded on : Mon Mar 06 20:38:04 IST 2023 C/SCA/2204/2004 CAV JUDGMENT DATED: 03/03/2023 the District Collector are permitted to register criminal proceedings against the perpetrators.
Rule is made absolute. There shall be no order as to costs.
Sd/- .
(A. S. SUPEHIA, J)
:FURTHER ORDER:
After the aforesaid judgment is pronounced, learned Senior Advocate, Mr.Sanjanwala, requests for stay of the directions issued by this Court.
The request is refused, in view of the serious allegations leveled of committing fraud with the Court.
Sd/- .
(A. S. SUPEHIA, J)
***
Bhavesh-[PPS]*
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