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2010 DIGILAW 710 (PAT)

Rama Sahni S/o Late Sunar Sahni v. State Of Bihar

2010-04-09

DIPAK MISRA, MIHIR KUMAR JHA

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JUDGEMENT 1. Questioning the legal substantiality of the order dated 2nd September, 2009 passed by learned Single Judge in CWJC No. 17627 of 2008, the present appeal has been preferred under Clause 10 of Letters Patent. 2. The resume of facts which are imperative to be stated for adjudication of the appeal are that the appellants-writ petitioners (hereinafter referred to as the appellants) being dissatisfied with the order dated 1.3.2006 passed by the Commissioner, Tirhut Division, Muzaffarpur in Revision Case No. 236-Misc./92-93 whereby the said authority has set aside the order of the Additional Collector dated 1.12.1992, invoked the writ jurisdiction for quashment of the same. 3. The case before the writ court was that Julum Mallah is the ancestor of the appellants and they are in continuous possession over the land for more than 100 years. The respondents no. 6 to 8 committed fraud and got jamabandi nos. 940 and 679 created in their favour, despite the fact that they did not have right, title, interest and possession over the land in question. It was worth noting the land pertains to C.S. Khata No. 1031, Plot Nos. 2871 and 2897 and the admeasured 12 kathas 13 dhurs and 6 kathas 13 dhurs respectively situate in Village-Puraina. 4. Being dissatisfied with the aforesaid record in jamabandi, the appellants initiated a proceeding which was registered as jamabandi No. 114 of 1990-91 for cancellation of jamabandi and to create jamabandi in their, favour. Land Reforms Deputy Collector directed Halaka Karamchari through the Circle Officer to submit a report and after hearing the parties cancelled the jamabandi in favour of respondents no. 6 to 8. The predecessors-in-interest of respondent nos. 7 and 8 preferred Revision Case No. 255 of 1991 for setting aside the order of Land Reforms Deputy Collector in Rent Fixation Case No. 114 of 1990-91. The Additional Collector, as is apparent from the material brought on record, affirmed the order dated 1.12.1992. 5. Being aggrieved, the respondents challenged the order of Additional Collector before the Commissioner, Tirhut Division, Muzaffarpur who set at naught the order passed by Additional Collector and that of the Land Reforms Deputy Collector. The said order as contained in Annexure-5 came to be challenged in the writ petition. 6. 5. Being aggrieved, the respondents challenged the order of Additional Collector before the Commissioner, Tirhut Division, Muzaffarpur who set at naught the order passed by Additional Collector and that of the Land Reforms Deputy Collector. The said order as contained in Annexure-5 came to be challenged in the writ petition. 6. It was contended before the learned Single Judge that respondents did not have the right to file a second revision under the provisions of Section 17 of the Bihar Tenants Holdings (Maintenance of Records) Act, 1973 (for brevity 1973 Act). To bolster the said submission, reliance was placed on a Division Bench decision rendered in Arun Kumar Sinha and Others vs. Suresh Prasad and Others, 1997(2) PLJR 996. 7. In the writ court, an application was filed by the purchasers who had purchased the disputed land from the recorded Khewatdars. The intervention application was allowed. The learned single Judge adverted to the facts and specially took note of the fact that the grandfather of the writ petitioners had filed an application under Section 48(E) of the Bihar Tenancy Act against the vendors of respondents in the year 1982 claiming bataidari rights and possession over the said land and the said application formed subject matter of Case No. 47 of 1982-83. Land Reforms Deputy Collector by order dated 28.1.1983 dismissed the application on merits and said order had gone unassailed. The aforesaid fact was nowhere mentioned by the writ petitioners and therefore the learned Single Judge came to hold that Land Reforms Deputy Collector could not have entertained another application for cancellation of Jamabandi and therefore the question of maintainability of second revision was of no significance and accordingly, dismissed the writ petition. 8. We have heard Mrs. M. Chatterjee, learned counsel for the appellants and Mr. Manan Kumar Mishra, learned Senior Counsel alongwith Mr. Sanjay Kumar Pandey, counsel for the respondents. 9. It is submitted by Mrs. M.Chatterjee, learned counsel for the appellants that the order passed by the learned Single Judge is absolutely vulnerable, inasmuch as, she has not adverted to the factum that second revision was not maintainable under 1973 Act. 10. Manan Kumar Mishra, learned Senior Counsel alongwith Mr. Sanjay Kumar Pandey, counsel for the respondents. 9. It is submitted by Mrs. M.Chatterjee, learned counsel for the appellants that the order passed by the learned Single Judge is absolutely vulnerable, inasmuch as, she has not adverted to the factum that second revision was not maintainable under 1973 Act. 10. It is her further submission that the application that was filed by the grandfather of the appellants was on a different context and any adjudication thereon would not destroy or demolish the rights of the present appellants and further when an application is filed on an erroneous conception and adjudicated by an authority, it has no sanction of law. It is further urged by Mrs. Chatterjee that the order passed by the Commissioner in second revision being without jurisdiction is a nullity. 11. Mr. Manan Kumar Mishra, learned Senior Counsel appearing for the respondents resisting the aforesaid submission contended that it was within special knowledge of the appellants that the predecessors-in-interest had filed an application which had met with failure and therefore on the same cause of action an edifice could not have been built. It is urged by him a fraud was committed by bringing in a first proceeding before Land Reforms Deputy Collector for correction of jamabandi and when the infrastructure is built upon fraud, the whole superstructure has to collapse and should not be given any kind of mileage or leverage in exercise of writ jurisdiction. 12. It is propounded by Mr. Mishra that second revision being not maintainable the order passed by the said authority is a nullity and does not deserve acceptation, inasmuch as, when the whole case is built upon fraud and the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India notices such fraudulent action and comes to hold that the order has been obtained by fraud, it is duty bound to rectify the mistake and not allow the mistake and erroneous order to continue till perpetuity. 13. To appreciate the rival submissions raised at the Bar, we have thought it apposite to verify the order passed in Case No. 47 of 1982-83 which was filed by the grandfather of the appellants. The said order has been brought on record as Annexure-2. 13. To appreciate the rival submissions raised at the Bar, we have thought it apposite to verify the order passed in Case No. 47 of 1982-83 which was filed by the grandfather of the appellants. The said order has been brought on record as Annexure-2. Relevant portion of the said order which is in Hindi being translated into English reads as under: "...Therefore the matter under consideration before this Court is whether the applicant has prima facie case is made out. In my opinion from the deeds dated 16.5.1935 and 28.11.22 it is clear that at that time the land was under the possession of Ambica Mishra who had kept it under mortgage on 28.11.22 to Sheonandan which was redressed by Sanjay Kuer on 23.12.35 and got possession of the land. Thereafter her name was recorded in the records of ex-landlord and after that it came in the name of opp. party. In these circumstances, it is not proper to constitute the Board. Therefore the application of the petitioner is dismissed...." 14. On a scrutiny of the said order, it is clear that predecessors-in-interest had filed an application for establishment of bataidari rights. Once such application is preferred and rejected and the said order has gone unchallenged and unattacted, needless to emphasize, persons claiming as successors-in-interest are bound by the same. The innovative proposition that has been canvassed by Mrs. Chatterjee is that they were not aware of the order and the application was filed in a misconception are only noted to be rejected and we do so. 15. The fulcrum of the matter is whether the order passed by Additional Collector, West Champaran which has been challenged before the Commissioner who interfered with the order would amount to a nullity so as to be ignored. The first order passed by the Additional Collector proceeded reflected as if he was adjudicating the lis for the first time. The fact that there had been earlier determination under Section 48(E) of the Bihar Tenancy Act was not brought to the notice, though the vendors were made parties, yet they did not contest the same, the real contestant was purchasers. Apart from above, the said order has to be treated to be within special knowledge of the appellants. In any case that was an order passed by a statutory forum. Apart from above, the said order has to be treated to be within special knowledge of the appellants. In any case that was an order passed by a statutory forum. When there is suppression of this nature and an endeavour is made to obtain an order from a quasi-judicial forum, it would not be an exaggeration to say a fraud has been deliberately played. It is well settled that fraud vitiates every act. Fraud and justice cannot be allowed to co-exist. Where fraud entrenches, the justice cries in silence. He who has special source of knowledge about a particular fact but does not bring to the knowledge of the adjudicating authority, if a fraudulent act committed with the sole purpose to obtain an order. Any order that is secured by fraud is fundamentally unacceptable and that has to be thrown overboard. When the facts are obvious and put on a clean canvas, it is difficult to hold that the said order should be allowed to sustain. 16. The duty of the writ court is to see that a wrong order is not allowed to be perpetuated. The exercise of power under Article 226 of the Constitution of India is on a larger canvas and it cannot be restricted or constricted. A writ court has to see that eventual justice is done. When it has come to the knowledge of the writ court that the order had been obtained in such a manner, i.e., it came to be passed on the base of erroneous facts contrary to the earlier order which has gone unassailed, needless to say, interference was the imperative and that having been done by learned Single Judge, we are not inclined, the same cannot be interfered with. 17. One aspect is also worth noticing. Assuming the writ court had set aside the order passed by the Commissioner, it would have amounted to revival of the order passed by the Additional Collector. To have our own satisfaction, we have carefully scanned the order passed by Additional Collector and on studied scrutiny of the same and if we permit ourselves to say so by applying magnifying glass, we do not perceive any reason that the application had been allowed except stating in a bald manner that admittedly, the grandfather of the present appellants was bataidar and, therefore, the rights should be conferred on them. There is no material to show who had admitted and where was the right. Thus, there was no adjudication. When an order is passed which not only an apology of an order passed by a quasi judicial authority and the same also cannot be given the affirmation by a writ court as its continuance would tantamount to perpetuate a fraudulent order. Hence, the order of the learned Single Judge is absolutely impeccable. 18. Resultantly, the appeal, being sans merit, stands dismissed without any order as to costs.