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2013 DIGILAW 788 (MP)

Mullo v. State of M. P.

2013-07-11

S.K.GANGELE

body2013
ORDER 1. Heard. 2. The petitioner has filed this petition against the order date 20.10.2004 (Annexure P/1) and date 30.12.2000 (Annexure P/2). 3. A land of survey No.353 min. area 2 bigha situate at village Bhatiyara, Tahsil Jaura was settled in favour of the petitioner vide order date 7.1.1994. Some complaints were made to the Collector against the aforesaid settlement and other orders passed by the Tahsildar. The Collector directed Mr.R.K.Shrivastava, Dy. Collector Morena to conduct an enquiry. The authority conducted the enquiry and found that the order of settlement passed in favour of the petitioner was contrary to law. The petitioner was not eligible in regard to settlement of land. Thereafter, a show cause notice was issued to the petitioner. The petitioner submitted reply to the notice. After receiving the reply, the Collector passed the order date 30.12.2000 (Annexure P/2) and cancelled the settlement in exercise of powers of suo motu revision under the M.P.Land Revenue Code, 1959. 4. The Collector observed that Naib Tahsildar recorded a finding in the order that the petitioner was in possession over the land for the last 3-4 years, however, the possession of the petitioner was first recorded in khasra of Samwat 2048. It is further observed by the Collector that in accordance with clause 24 of Revenue Book Circular 4-3, the land which has an area of ½ hectare or less could be settled in favour of neighbouring Bhumiswami. However, the area of the land of the petitioner is about 2 bigha, which is more than ½ hectare. It is further observed by the Collector that the land was settled in favour of the petitioner, however, the husband of the petitioner was the Bhumiswami of the land of the neighbouring area, hence, the petitioner was not eligible for settlement of land by the Tahsildar. The authority further observed that the petitioner was not eligible for settlement of land at all and an illegal order was passed in favour of the petitioner. The authority also rejected the objection of limitation of six years after holding that the settlement was illegal and the matter was taken in suo motu revision within the date of knowledge when the complaint was made. 5. Against the aforesaid order, a revision was filed before the Collector, that has also been dismissed. 6. The authority also rejected the objection of limitation of six years after holding that the settlement was illegal and the matter was taken in suo motu revision within the date of knowledge when the complaint was made. 5. Against the aforesaid order, a revision was filed before the Collector, that has also been dismissed. 6. Counsel for the petitioner has contended that Mr.R.K.Shrivastava, Dy.Collector, Morena did not afford opportunity of hearing to the petitioner. The order passed by the Collector was illegal and the Collector has no power and authority to entertain the suo motu revision after a period of six years. In support of his contention, learned counsel relied on the Full Bench decision of this Court in the case of Ranveer Singh and others v. State of M.P. reported in 2010 RN 409 = 2010(3) JLJ 77 = 2010 (5) M.P.H.T. 137 (FB). 7. As observed earlier in this order, the Collector has specifically recorded a finding that the petitioner was not at all eligible for settlement of land. The petitioner and the counsel for the petitioner have failed to controvert the aforesaid finding on merits. The possession of the petitioner was recorded for a limited period. Naib Tahsildar had power to settle the land of area less than ½ hectare, however, he passed the order of land of more than ½ hectare. Apart from that the petitioner has no neighboring land in her favour as Bhumiswami. In such circumstances, in my opinion, the finding recorded by the Collector that the settlement was per se illegal is in accordance with law. 8. From the perusal of the proceedings, it is clear that the Collector initiated the proceedings within time after the date of knowledge. Hence, it could not be said that the authority has no power to take the matter in suo motu revision. Apart from this, when the fraud has been played, the question of limitation does not arise, as held by Hon’ble Supreme Court in the case of A.V.Papayya Sastry and others v. Govt. of A.P. And others – (2007) 4 SCC 221 - “21. Now, it is well-settled principle of law that if any judgment or order is obtained 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. of A.P. And others – (2007) 4 SCC 221 - “21. Now, it is well-settled principle of law that if any judgment or order is obtained 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. It 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 d`by the first Court or by the final Courtd`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. 23. In the leading case of Lazarus Estates Ltd. v. Beasley Lord Denning observed: (All ER p. 345 C) : “No judgment of a Court, no order of a Minister, can be allowed to stand if it has been obtained by fraud.” 24. In Duchess of Kingstone, Smith’s Leading Cases, 13th Edn., p. 644, explaining the nature of fraud, De Grey, C.J. stated that though a judgment would be res judicata and not impeachable from within, it might be impeachable from without. In other words, though it is not permissible to show that the Court was “mistaken”, it might be shown that it was “misled”. There is an essential distinction between mistake and trickery. The clear implication of the distinction is that an action to set aside a judgment cannot be brought on the ground that it has been decided wrongly, namely, that on the merits, the decision was one which should not have been rendered, but it can be set aside, if the Court was imposed upon or tricked into giving the judgment. 25. It has been said: fraud and justice never dwell together (fraus et jus nunquam cohabitant); or fraud and deceit ought to benefit none (fraus et dolus nemini patrocinari debent). 26. Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. 26. Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of “finality of litigation” cannot be stretched to the extent of an absurdity that it can be utilised as an engine of oppression by dishonest and fraudulent litigants. 27. In S.P. Chengalvaraya Naidu v. Jagannath this Court had an occasion to consider the doctrine of fraud and the effect thereof on the judgment obtained by a party. In that case, one A by a registered deed, relinquished all his rights in the suit property in favour of C who sold the property to B. Without disclosing that fact, A filed a suit for possession against B and obtained preliminary decree. During the pendency of an application for final decree, B came to know about the fact of release deed by A in favour of C. He, therefore, contended that the decree was obtained by playing fraud on the Court and was a nullity. The trial Court upheld the contention and dismissed the application. The High Court, however, set aside the order of the trial Court, observing that “there is no legal duty cast upon the plaintiff to come to Court with a true case and prove it by true evidence”. B approached this Court. 28. Allowing the appeal, setting aside the judgment of the High Court and describing the observations of the High Court as “wholly perverse”, Kuldip Singh, J. stated: (SCC p. 5, para 5) : “The Courts of law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. We are constrained to say that more often than not, process of the Court is being abused. Property grabbers, tax-evaders, bank-loan-dodgers and other 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.” (emphasis supplied) 29. 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.” (emphasis supplied) 29. The Court proceeded to state: (SCC p. 5, para 6) : “A litigant, who approaches the Court, is bound to produce all the documents executed by 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.” 30. The Court concluded: (SCC p. 5, para 5) : “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.” 31. In Indian Bank v. Satyam Fibres (India) (P) Ltd. referring to Lazarus Estates and Smith v. East Elloe Rural Distt. Council this Court stated: (SCC pp. 562-63, para 22) : “22 “The judiciary in India also possesses inherent power, specially under section 151 CPC, to recall its judgment or order if it is obtained by fraud on Court. In the case of fraud on a party to the suit or proceedings, the Court may direct the affected party to file a separate suit for setting aside the decree obtained by fraud. Inherent powers are powers which are resident in all Courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the constitution of the Tribunals or Courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behaviour. This power is necessary for the orderly administration of the Court’s business.” Hence, the ratio of Full Bench decision (supra) is not applicable in the present case. I do not find any merit in this petition. It is hereby dismissed. No order as to costs.