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2019 DIGILAW 1391 (JHR)

Pinki Kumari v. State of Jharkhand

2019-08-06

SUJIT NARAYAN PRASAD

body2019
JUDGMENT : All these writ petitions are against the common impugned orders, therefore, these writ petitions have been directed to be heard together as per the order dated 06.04.2018 passed in W.P.(C) No.4605 of 2016. 2. In view thereof, all the writ petitions have been listed together and have been heard and now being disposed of by this common order. 3. The writ petitions are against the order dated 01.08.2015 passed in Case Nos.1235/14-15, 1236/14-15, 1237/14-15 and 1238/14-15 by the Circle Officer, Katkamsandi, whereby and whereunder according to the petitioner, without providing any opportunity of hearing and without following due procedure established under the Law, the mutation and rent receipt issued in favour of the petitioners in terms of order dated 31.03.2015 with respect to the land in question have been cancelled by reviewing the order passed by the Circle Officer, Katkamsandi on the basis of the objection filed by the villagers of Gadokhar in the District of Hazaribagh. 4. The brief facts of the case as per the pleading made in these writ petitions are that the petitioners being in need of land situated at village Gadokhar had purchased the same from Vijay Kumar Gupta, Sri Narayan Kumar Gupta and Sri Pradeep Kumar Gupta on a valuable consideration amount and on being agreed, the lands in question have been sold out in favour of the petitioners by virtue of the registered sale deed executed on different dates, thereafter, the petitioners had applied for mutation in their names and on the basis of the application made, the halka karamchari and Circle Inspector had conducted an inquiry on the direction of the Circle Officer and has submitted a report to the effect that the ex-landlord had earlier issued jamabandi in favour of one Md. Safi with respect to the land in question which is prior to abolition of jamabandi with reference that the Government has also issued rent receipt in terms of the receipt issued by the ex-landlord, however, the rent receipt was discontinued to be issued on or after the year 1972. Safi with respect to the land in question which is prior to abolition of jamabandi with reference that the Government has also issued rent receipt in terms of the receipt issued by the ex-landlord, however, the rent receipt was discontinued to be issued on or after the year 1972. The Deputy Collector Land Reform, Hazaribagh passed an order for issuance of rent receipt in a regular proceeding and on the basis thereof, the rent receipt was issued and subsequent to the purchase of the land by the petitioners, the necessary correction has been made in the register-2(rent register) and the petitioners are in peaceful possession of the land after its purchase from the said Vijay Kumar Gupta and others but after a while the Circle Officer, suo moto without any knowledge and information to the petitioners made a recommendation to the Deputy Collector Land Reform, Sadar, Hazaribagh for cancellation of mutation issued in favour of the petitioners but Deputy Collector Land Reform has refused to exercise its jurisdiction on the ground that it would not be appropriate to again re-heard the matter for the purpose of cancellation of mutation and accordingly, the record was forwarded to the Additional Collector for further action along with original documents. The Circle Officer, thereafter has requested the Additional Collector to return the records with respect to the mutation cases by giving reference of the order passed by the Hon’ble Apex Court in the case of Baidyanath Dubey Vs. Devnandan Singh, which states that the Court has inherent power to recall an order obtained by the practicing fraud on it at the instance of the party to the proceeding and further the Court has inherent right to recall its invalid orders and accordingly, the Circle Officer has started a proceeding for cancellation of the mutation already granted in favour of the petitioners and thereafter has passed an order by recalling the order of mutation passed in favour of the petitioner against which, the present writ petitions have been filed. 5. Mr. 5. Mr. Ashok Kumar Yadav, learned counsel for the petitioner inter-alia has taken the following grounds in assailing the impugned orders:- (i) The Circle Officer has recalled the order by assuming the power of review while the Act applicable under which the order of mutation has been passed i.e., the Bihar Tenant’s Holdings (Maintenance of Records) Act, 1973 does not provide any power of review and therefore, in absence of any power of review, the decision already taken by the authority cannot be recalled; (ii) No opportunity of hearing has been given to the petitioners while passing fresh order by way of recall of the earlier order; (iii) The petitioners have not committed any fraud and therefore, the reference of judgment as has been made in the order passed by the Circle Officer dated 28.07.2015 rendered in the case of Baidyanath Dubey Vs. Devnandan Singh, is not applicable; (iv) The case of the petitioners exactly falls under the fold of the judgment rendered in the case of B.S. Sandhu and Ors. Vs. Government of India and Ors., passed in Civil Appeal No.4682-4683 of 2013 as contained under annexure-13 to the writ petition. 6. Mr. Navin Kumar, learned G.P.-IV appearing for the State-Respondent, at the outset, has submitted that in one of the case i.e., W.P.(C) No.4598 of 2016, counter affidavit has been filed by the respondent nos.1 and 5 by serving a copy of the same upon the learned counsel for the petitioners, therefore, the stand taken therein is being adopted in the other cases since the issues are same and similar. The State of Jharkhand, inter-alia has taken the stand that although under the Act, 1973, there is no provision of review but it is the settled position of law that if any order has been passed by the administrative authority or the Court of Law found to be illegal, since its inception, the said authority has got power to recall it by following the principle that the illegality cannot be allowed to be perpetuated. It is incorrect to say that the petitioners have never been given an opportunity of hearing rather it would be evident from the order dated 01.08.2015, wherein specific stipulation has been made that before cancelling the jamabandi the notices have been issued to the petitioners and they have heard at length. It is incorrect to say that the petitioners have never been given an opportunity of hearing rather it would be evident from the order dated 01.08.2015, wherein specific stipulation has been made that before cancelling the jamabandi the notices have been issued to the petitioners and they have heard at length. The contention of the petitioner is that no fraud has been committed and as such, the judgment rendered in the case of Baidyanath Dubey Vs. Devnandan Singh, is not applicable and is not correct position of law, in view of the fact that the land in question has been recorded in the record of rights as Gairmazaruwa Khas having been mentioned therein the “jungle” and as such, this fact has been suppressed by not placing the record of rights and therefore, there is fraud committed on the part of the petitioners and it is settled that the fraud vitiates everything and if there is a fraud, the administrative authority is required to recall the order and following the said principle, the power of review has been exercised. So far as the contention, the judgment rendered in the case of B.S. Sandhu and Ors. Vs. Government of India and Ors. (supra) as has been relied upon by the learned counsel for the petitioner has rightly been relied but it is in favour of the State-Respondent, since therein also the Hon’ble Apex Court by elaborately discussing the judgment rendered in the case of T.N. Godavarman Thirumulkpad Vs. Union of India and Ors., reported in (1997) 2 SC 267, has come out with the conclusive finding that before taking into consideration the nature of land as to whether it is forest or not, the Government record needs to be examined and therefore, since the Government records reflects herein about the nature of land as Gairmazaruwa Khas and as such, the judgment relied upon by the learned counsel for the petitioner rendered by the Hon’ble Apex Court in the case of B.S. Sandhu (supra), is not of any aid to the petitioners. 7. 7. This Court having heard the learned counsel for the parties and on appreciating their rival submissions advanced on behalf of the petitioners as also the learned State-Respondent and after going across the pleading made in the writ petitions as also the counter affidavit filed on behalf of the respondent, is of the view that before dealing with the legal issues as well as the factual aspect, reference of provision of the Act, 1973, needs to be made. The Act, 1973 has been enacted to provide for maintenance of up-to-date records of holdings of raiyats in the State of Bihar and matters connected therewith. Under the definition part the “Anchal Adhikari” has been defined which means an officer appointed as such by the State Government. “Mutation” has been defined which means any alteration in the entries in the continuous Khatian and the tenants’ ledger register maintained under this Act. “Mutation Case Register” means a register in the form prescribed. “Prescribed” means prescribed by the Rules made under this Act. “Record-of-rights” means the last record-of-rights finally published under Chapter X of the Bihar Tenancy Act, 1885 (Act VII of 1885) or, as the case may be Chapter XII of the Chota Nagpur Tenancy Act, 1908 (Bengal Act VI of 1908) or the Santhal Parganas Settlement Regulation, 1872 (Reg. 3 of 1872). Section 14 under Chapter III contains a provision under the head mutation for requisition and disposal of mutation case which shall be exercised by the Anchal Adhikari which reads as hereunder:- “14. Requisition and disposal of mutation case.-(1) On receipt of notice under Sections 4, 5, 6, 7, 8, 9 and 10 or an application under Sections 11 and 12 or a report under Section 13, the Anchal Adhikari shall start a mutation proceeding and after entering it in the mutation case register which shall be maintained in the prescribed form shall cause such enquiry to be made as may be deemed necessary. (2) The Anchal Adhikari shall issue a general notice and also give notice to the parties concerned to file objection, if any, within 15 days of the issue of the notice. On receipt of objection, if any, the Anchal Adhikari shall give reasonable opportunity to the parties concerned to adduce evidence, if any, and of being heard and dispose of the objection and pass such orders as may be deemed necessary. On receipt of objection, if any, the Anchal Adhikari shall give reasonable opportunity to the parties concerned to adduce evidence, if any, and of being heard and dispose of the objection and pass such orders as may be deemed necessary. (3) In cases in which no objections are received, the Anchal Adhikari shall dispose them of within one month of the date of expiry of filing objection and in cases in which objections are received, the Anchal Adhikari shall dispose them of in not more than three months from the date of expiry of the period of filing objections.” Section 15 of the Act, 1973 contains a provision of appeal which reads as hereunder:- “15. Appeals.-(1) An appeal shall lie to the Land Reforms Deputy Collector against the order of the Anchal Adhikari passed under sub-section [(2)] of Section 14, if preferred within [thirty days] of the date of the order appealed against. (2) No order modifying, altering or setting-aside any order appealed against shall be passed under this section unless the parties concerned have been given a reasonable opportunity of being heard. (3) Subject to the provisions of [Section 16], the order of the Land Reforms Deputy Collector on appeal shall be final.” Section 16 contains a provision of revision which reads as hereunder:- “16. Revision.-The Collector of the district may, on an application made to him in this behalf or for the purpose of satisfying himself as to the legality or propriety of any order made under this Act or the rules made thereunder by any authority or officer call for and examine the record of any case pending before or disposed of by such authority or officer and pass such order as he thinks fit: Provided that the Collector shall not entertain any application from any person, aggrieved by any order, unless it is made within thirty days from the date of the order; Provided further that no order modifying, altering, or setting-aside, any order made by such authority or officer shall be passed by the Collector unless the parties concerned have been given a reasonable opportunity of being heard.” 8. After going across the aforesaid provision of law, it is very much clear that the proceeding is to be initiated for disposal of mutation cases on a requisition, if made by a person on receipt of notice under Sections 4, 5, 6, 7, 8, 9 and 10 or an application under Sections 11 and 12 or a report under Section 13, the Anchal Adhikari shall start a mutation proceeding and after entering it in the mutation case register which shall be maintained in the prescribed form shall cause such enquiry to be made as may be deemed necessary. The Anchal Adhikari shall issue a general notice and also give notice to the parties concerned to file objection, if any, within 15 days of the issue of the notice. On receipt of objection, if any, the Anchal Adhikari shall give reasonable opportunity to the parties concerned to adduce evidence, if any, and of being heard and dispose of the objection and pass such orders as may be deemed necessary. In cases in which no objections are received, the Anchal Adhikari shall dispose them of within one month of the date of expiry of filing objection and in cases in which objections are received, the Anchal Adhikari shall dispose them of in not more than three months from the date of expiry of the period of filing objections. Section 4 stipulates a provision conferring power upon the registering authority to give notice of transfer and registration to Anchal Adhikari while Section 5 stipulates a provision conferring power upon the Civil Courts to give notice of delivery of possession to the decree-holder or auction purchaser or decree for partition or for foreclosure to the Anchal Adhikari Section 6 contains a provision conferring power upon the Certificate Officer to give notice to the Anchal Adhikari of delivery of possession to the auction purchaser. Section 7 confers power upon the Collector to give notice of acquisition under the Land Acquisition Act, 1894 to the Anchal Adhikari while further Section 8 confers power upon the Collector to give notice in certain events i.e., in case of final order passed under Section 6 of the Bihar Public Land Encroachment Act, 1956; when any land has vested in the State Government under the Bihar Land Reforms (Fixation of Ceiling Areas and Acquisition of Surplus Land) Act, 1961 (Bihar Act 12 of 1962) or when any such land or Government land is settled by the Collector; when any land has been acquired by the Collector for irrigation purposes and taken possession of land under the provision of Chapter-VI of the Bihar Private Irrigation Works Act, 1922; when orders relating to the determination of fair and equitable rent or transfer of holding or a portion thereof or ejectment therefrom has been passed by the Collector under the provisions of the Bihar Privileged Persons Homestead Tenancy Act, 1947; when a holding or a portion thereof has been restored to a former raiyat under the provisions of the Kosi Area (Restoration of Lands to Raiyat) Act, 1951; when a holding or part thereof has been acquired under Section 50 of the Chota Nagpur Tenancy Act, 1908 (Bengal Act VI of 1908) or Section 53 of the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949 and possession is given to the applicant; when an under-raiyat unlawfully ejected from his tenancy or portion thereof is restored to possession under Section 48 of the Bihar Tenancy Act, 1885 and when permanent tenancy is conferred upon a privileged tenant in a holding under the Bihar Privileged Persons Homestead Tenancy Act, 1947. Section 9 confers power upon the Civil Courts to give notice of acquisition under Section 84 of Bihar Act VIII of 1885 and Section 10 confers power upon the Bhoodan Yagna Committee to give notice of settlement of land. Section 9 confers power upon the Civil Courts to give notice of acquisition under Section 84 of Bihar Act VIII of 1885 and Section 10 confers power upon the Bhoodan Yagna Committee to give notice of settlement of land. Section 11 contains a provision conferring right upon the under raiyat claiming to have acquired the status of occupancy raiyat under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 to file application before the Anchal Adhikari while Section 12 contains a provision conferring power upon the persons claiming interest by partition effected either privately or through Court or intestate or testamentary succession, transfer, exchange, agreement, settlement, lease, mortgage, gift or by any other means to file application before the Anchal Adhikari. Section 13 confers power upon the Mukhiya, Circle Inspector or Karamchari to report cases of partition or intestate or testamentary succession or acquisition by any other means to the Anchal Adhikari. Thus, it is evident that the power of Section 14 is to be exercised by the Anchal Adhikari for disposal of mutation cases but it no-where provides power of review or recall of the decision taken by the Anchal Adhikari. 9. The question which has been raised by the learned counsel for the petitioners that in absence of power of review whether the decision taken by the Anchal Adhikari in passing an order in favour of the petitioners by creating mutation in a regular proceeding initiated under Section 14 of the Act, 1973, can be said to be justified. Admittedly, there is no power of review provided under the provision of Section 14 of the Act, 1973 but the question which is to be examined by this Court by going across the impugned order, whereby and whereunder, the Circle Officer had recalled the earlier decision of creating mutation in favour of the petitioners on the ground of suppression of fact, in absence of power of review, can it be justified? It is not in dispute that the fraud vitiates everything and if any instrument has been created by way of fraud, the same can lead to vitiate the entire proceeding and its consequence. Reference in this regard may be made to the judgment rendered by the Hon’ble Apex Court in the case of Devendra Kumar Vs. State of Uttaranchal and Ors., reported in (2013) 9 SCC 363 . Reference in this regard may be made to the judgment rendered by the Hon’ble Apex Court in the case of Devendra Kumar Vs. State of Uttaranchal and Ors., reported in (2013) 9 SCC 363 . The fraud has been defined under the provision of Section 17 of the Contract Act, which reads as hereunder:- “17. “Fraud” defined.-“Fraud” means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract: (1) The suggestion, as a fact, of that which is not true, by one who does not believe it to be true; (2) The active concealment of a fact by one having knowledge or belief of the fact; (3) A promise made without any intention of performing it; (4) Any other act fitted to deceive; (5) Any such act or omission as to fact likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence is, in itself, equivalent to speech. It is evident from the aforesaid provision that if any material suppression fact is there, it will amounts to fraud. Further it is not in dispute, so far as the legal position is concerned, if an order is wrong since its inception, it cannot be made lawful by subsequent action/development. Reference in this regard may be made to the judgment rendered by the Hon’ble Apex Court in the case of State of Uttar Pradesh and Ors. Vs. Neeraj Chaubey and Ors., reported in (2010) 10 SCC 320. Further, it is the settled position of law that a right of law exists only when it has a lawful origin, reference in this regard may be made to the judgment rendered by the Hon’ble Apex Court in the cases of Upen Chandra Gogoi Vs. State of Assam, reported in AIR 1998 SC 1289 , Mangal Prasad Tamoli Vs. Narvedshwar Mishra and Ors., reported in AIR 2005 SC 1964 and Ritesh Tewari and Anr. Vs. State of U.P. and Ors., reported in AIR 2010 SC 3823 . State of Assam, reported in AIR 1998 SC 1289 , Mangal Prasad Tamoli Vs. Narvedshwar Mishra and Ors., reported in AIR 2005 SC 1964 and Ritesh Tewari and Anr. Vs. State of U.P. and Ors., reported in AIR 2010 SC 3823 . It further needs to refer herein that if there is any illegality, the same cannot be allowed to be perpetuated and the moment it came to the notice of the authority concerned and the Court of Law, it has to be rectified, reference in this regard has also been made by the Hon’ble Apex Court in the cases of Yogesh Kumar and Ors. Vs. Govt. of NCT, Delhi and Ors., reported in (2003) 3 SCC 548 , Union of India and Anr. Vs. International Trading Co. and Anr., reported in (2003) 5 SCC 437 , Kulwinder Pal Singh and Anr. Vs. State of Punjab and Ors., reported in (2016) 6 SCC 532 . 10. The discussion of the judgment as has been relied upon by the learned counsel for the petitioner rendered by the Hon’ble Apex Court in the case of B.S. Sandhu and Ors. Vs. Govt. of India and Ors.(supra) as contained under annexure-13 to the writ petition also needs to be referred and from its perusal, the question fell for consideration in the said appeal before the Hon’ble Apex Court was that one Col. B.S. Sandhu was the proprietor/Managing Director of the Forest Hill Golf and Country Club, who has come out with the plea before the High Court that merely because village Karoran is covered under the Punjab Land Preservation Act, 1900 in short “PLP Act, 1990”, the lands comprising the area of village Karoran do not become ‘forest land’ and further contended that the lands in village Karoran on which the Forest Hill Golf and Country Club has been constructed were private lands acquired by sale deeds by the Dashmesh Educational Society formed by him for a period of eight years from different owners and some of the lands are agricultural lands and some of the land are uncultivable waste lands (Gair Mumkin Pahar) and unless a formal notification was issued under Section 35 of the Forest Act, 1927 notifying a private land as ‘forest land’, a private land cannot be treated to be ‘forest land’. An Expert Committee has been constituted in terms of the judgment rendered by the Hon’ble Apex Court in the case of T.N. Godavarman Thirumulkpad (supra) for identifying all the ‘forest areas’ including those owned by private land owners in village Karoran as ‘forest land’ and an affidavit was also filed on behalf of the Forest Department, Govt. of Punjab, deleting large portions of land under habitation in village Karoran from the list of forest areas in the State of Punjab. The Hon’ble Apex Court in this case (B.S. Sandhu’s case) has come out with the finding that the factual question about the nature of the land needs to be assessed on the basis of the Government records as on 25.10.1980 and an inquiry is required to be made by the State Forest Department, by mere inclusion of the same under the notification under Section 3 of the PLP Act, 1900 and in the said case the State Government has come out with the stand taken in the affidavit that the basis of inclusion of the entire land of village Karoran, District Ropar, in the forest areas in the records of the Forest Department of Govt. of Punjab was that the land was closed under the PLP Act, 1900 and therefore, the same has been said to be not correct. 11. The question of power of review has been examined taking into consideration the ground raised by the State authority to the effect that the land in question is recorded in the Khatiyan as forest (jungle) which led the Circle Officer to initiate a proceeding for recall of the earlier order. 12. The settled position of law as has been referred hereinabove that if any order has been passed in suppression of any material fact, the same would be said to be mis-representation of fact and active concealment which will be termed as “fraud” and in the case of fraud as has been settled by the Hon’ble Apex Court in the case of Devendra Kumar Vs. State of Uttaranchal and Ors. State of Uttaranchal and Ors. (supra) that the fraud vitiates everything and therefore, if there is material suppression of fact by way of active concealment of the factual aspect pertaining to the nature of land warranting the reviewing authority to initiate a fresh proceeding for recall of the earlier decision, can it be said to be impermissible only due to non-availability of power of review under the statue. Reference in this regard may be made to the judgment rendered by the Hon’ble Apex Court in the case of Ram Preeti Yadav Vs. U.P. Board of High School and Intermediate Education and Ors., reported in (2003) Suppl. 3 SCR 352, wherein the Hon’ble Apex Court has reiterated that fraud avoids all judicial acts and suppression of material document has been treated to be a fraud. Further, the same view has been taken in the case of State of Andhra Pradesh and Anr. Vs. T. Suryachandra Rao, reported in (2005) 5 SCC 149, wherein it has been held by the Hon’ble Apex Court that suppression of a material document would also amount to a fraud to the Court. A similar observation was also made by the Hon’ble Apex Court in the case of Bhaurao Dagdu Paralkar Vs. State of Maharashtra and Ors., reported in (2005) 7 SCC 605 , wherein it was noted that suppression of material document would also amount to fraud to the Court, although, the negligence is not fraud and it can be evidence of fraud. In the case of Hamza Haji Vs. State of Kerala and Anr., reported in (2006) 7 SCC 416, wherein it has been held that no Court will allow itself to be used as an instrument of fraud, and no Court, by the application of Rules or evidence or procedure can allow its eyes to be closed to the fact that it is being used as an instrument of fraud. In the case of S.P. Chengalvaraya Naidu Vs. Jagannath, reported in (1994) 1 SCC page 1, wherein the Hon’ble Apex Court has been pleased to observe that fraud avoids all judicial acts, ecclesiastical or temporal. It is the settled proposition of law that the judgment or decree obtained by playing fraud on the Court is nullity and non-est in the eyes of law. Jagannath, reported in (1994) 1 SCC page 1, wherein the Hon’ble Apex Court has been pleased to observe that fraud avoids all judicial acts, ecclesiastical or temporal. It is the settled proposition of law that the judgment or decree obtained by playing fraud on the Court is nullity and non-est in the eyes of law. It is in the light of the aforesaid legal position and when the factual aspect has been scrutinized which is in hand, it would be evident that although on an application made by the petitioner or their vendors, the Circle Officer in exercise of power conferred under Section 14 of the Act, 1973 but when it came to the notice to the Circle Officer that the order has been obtained by suppression of material fact i.e., the nature of land having been recorded in Khatiyan as forest (jungle), therefore, a fresh proceeding has been initiated and after providing an opportunity of hearing, the fact about reference made in the Khatiyan about the nature of land to be of “Jungle” has found to be correct and as such, the Circle Officer has passed an order recalling the earlier order treating it to be passed on the basis of the suppression of material fact. 13. It is evident from the proposition as referred hereinabove rendered by the Hon’ble Apex Court that the fraud vitiates everything and the definition of “fraud” as has been defined under the provision of Section 17 of the Contract Act which reflects in case of any material suppression fact i.e., the active concealment will amount to fraud and according to the considered view of this Court that the Khatiyan having not been produced by the petitioner, an error has been committed by the mutating authority in passing the order by correct mutation in favour of the petitioners but subsequent thereto, when it has been noticed by the mutating authority that the nature of land is recorded under Khatiyan as forest (jungle) but considering the implication of nature of land, nature of which cannot be changed, has initiated a proceeding afresh considering it to be based upon the fraud and while doing so, it cannot be said to be an illegal exercise. 14. 14. This Court is also conscious of the fact that the Indian Forest Act, 1927 or the Forest Conservation Act, 1980 has been enacted in order to stop the deforestation for the larger issue i.e., for maintaining the ecological balance and the sustainable development. In the case of M.C. Mehta vs. Union of India, reported in (2004) 12 SCC 118 , wherein the issue arose for consideration was whether the mining activity in the Aravalli Hills causing environmental upgradation and what directions are required to be issued, while considering this issue, the Hon'ble Apex Court has considered EIA 1994 and the Circular dated 14th May, 2002, in doing so, the Hon'ble Apex Court categorically held in paragraph 37 of the report that the intention of the Ministry of Environment and Forest was not to legalise the continuation of mining activity without compliance of requisite stipulations, if that were unfortunately so, then it would demonstrate lack of sensitivity of the Ministry of Environment and Forest to the principle of sustainable development and the object behind issuing EIA 1994, to Court it does not appear that MOEF intended to legalise the commencement or continuation of mining activity without compliance of stipulations of the notification. In any case, a statutory notification cannot be notified (modified) by issue of circular. Further, if MOEF intended to apply this circular also to mining activity commenced and continued in violation of this notification, it would also show total non-sensitivity of MOEF to the principles of sustainable development and the object behind the issue of notification. Circular has no applicability to the mining activity. Thereafter the matter came for consideration of the Minerals Act in the case of Goa Foundation vs. Union of India and Ors., reported in (2014) 6 SCC 590 wherein there was a challenge to the report of Justice Shah Commission in respect to its conclusion pertaining to the State of Goa, the same was dealt with in paragraphs 11 to 14 of the said application. The Hon'ble Apex Court has not quashed the report but took the view to examine the legal environmental issues raised in the report of Justice Shah Commission and on the basis of the findings of these issue, the concept of deemed renewal has been said to be illegal law keeping the fact into consideration that before renewal of the licence to operate the mining operations, the State Government is required to see as to whether the terms and conditions of the lease is being followed or against act and in such a situation wherein there is no violation of terms and conditions of the lease deed or any enactment of the minerals law, the licence is to be renewed subject to fulfillment of the other conditions, meaning thereby, the concept of deemed licence has been deprecated by the Hon'ble Apex Court keeping the fact into consideration the larger issue involved under mining operation leading to the environmental as well as sustainable development issues. Then the matter has again been looked into by the Hon'ble Supreme Court in the case of Common Cause vs. Union of India being W.P.(C) No.114 of 2014 wherein by dealing with the scope of Section 21(5) of the Act, 1997, its scope has been enhanced, enhancing to the forest clearance, environmental clearance, prevention of air pollution, prevention of water pollution, etc. and in the case of T.N. Godavarman Thirumulkpad Vs. Union of India and Ors. (supra) is of the view that where the nature of land is of forest having been entered in the record of rights, its nature cannot be changed, otherwise it will lead to accelerating deforestation. However, the judgment rendered in the case of T.N. Godavarman (supra) has again been considered in the case of B.S. Sandhu and Ors. Vs. Government of India and Ors. (supra), wherein, the Hon’ble Apex Court has been pleased to hold that before taking the decision about the nature of land to be treated as forest one, the record of rights of the Government, is required to be seen. Vs. Government of India and Ors. (supra), wherein, the Hon’ble Apex Court has been pleased to hold that before taking the decision about the nature of land to be treated as forest one, the record of rights of the Government, is required to be seen. Herein, as per the counter affidavit filed by serving a copy of the same upon the learned counsel for the petitioners by making reference of the nature of land as Gairmazaruwa Khas that of jungle and in reply in order to rebut the same by the State authority, no response has been filed by the petitioners, however, the copy of the counter affidavit has been served upon the learned counsel for the petitioner as on 08.09.2017, therefore, the stand taken by the respondent-State in the counter affidavit as under paragraph-8 thereof, has been treated to be admitted and therefore, this Court is of the view that the judgment rendered by the Hon’ble Apex Court in the case of B.S. Sandhu (supra) is of no help to the petitioner rather it is in the aid of the respondents since as per the Government records, the nature of land has been shown as Gairmazaruwa Khas (jungle). 15. This Court also deem it fit and proper to refer the power of administrative authority in recalling the decision taken if subsequently found to be contrary to the general policy, a reference in this regard may be made to the judgment rendered in the case of State of Uttar Pradesh & Ors. Vs. Maharaja Dharmander Prasad Singh & Ors., reported in (1989) 2 SCC 505 holding that the development authority had competence to initiate proceeding to revoke the permission on the ground that the permission had been obtained by mis-representation or fraud and in absence of authorization, the authority could not revoke or cancel the permission once granted, is erroneous. In the case of S. Nagaraj and Ors. Vs. State of Karnataka and Anr., reported in 1993 Suppl. (4) SCC 595 laying down that the power to rectify an order stems from the fundamental principle that the justice is above all and is to be exercised to remove the error and not for disturbing the finality and even when there is no statutory provision in this regard, such power is to be exercised to avoid abuse of process or miscarriage of justice. In the case of R.R. Verma and Ors. In the case of R.R. Verma and Ors. Vs. Union of India and Ors., reported in (1980) 3 SCC 402 , wherein it has been held that the principle that the power to review must be conferred by statute either specifically or by necessary implication is applicable to decisions purely of an administrative nature. In the case of Indian National Congress (I) Vs. Institute of Social Welfare and Ors., reported in (2002) 5 SCC 685 , wherein the Hon’ble Apex Court has been pleased to hold that in absence of a Rule authorizing the Government to reopen the closed proceeding, is not applicable to decision purely of an administrative nature as the Government must be free to alter its policy or its decision in an administrative matters and cannot be high binds by the rules and regulations of judicial procedure. In the case of Syngenta India Ltd. Vs. Union of India, reported in 161 (2009) DLT 413 laying down that administrative or statutory powers in aid of administrative functions imply flexibility and the need to review decisions taken and that unlike Courts, administrators and administrative bodies have to take decisions on the basis of broad, general policy considerations and that review as is understood in the functioning of the Courts is an entirely different concept. It was further held that importing elements from such concepts in administrative functioning would inject an avoidable rigidity in administrative process. It was further held that administrators and administrative bodies have power to make or change decisions, as the circumstances warrant, having regard to the nature of the power and the purpose for which it is granted. In the case of Union of India Vs. Narendra Singh, reported in (2008) 2 SCC 750 , wherein it has been held that mistake of department in promoting a person though was not eligible and qualified was held to be correctable and it was observed that mistakes are mistakes and they can always be corrected by following due process of law and that employer cannot be prevented for applying the Rules rightly and in correcting the mistakes. In the case of United India Insurance Company Ltd. Vs. In the case of United India Insurance Company Ltd. Vs. Rajendra Singh and Ors., reported in (2000) Volume 3 SCC 581, where it was held that the remedy of moving the motor accident claims tribunal for recalling the order on the basis of newly discovered facts amounting to fraud of high of degree, cannot be foreclosed in such a situation that no Court or tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or mis-representation of such a dimension as would affect the very basis of the claim. 16. This Court, therefore, is of the view taking into consideration the larger public interest since it pertains to using the land which is of the nature of forest as recorded in the Khatiyan, therefore, the said document has not been produced before the mutating authority and if subsequent thereto, he came to know about the said document and if exercising the power for recall of the earlier order, the same cannot be said to be unjustified one. So far as the question of commission of no fraud is concerned as the ground has been taken by the learned counsel for the petitioner, as has been stated hereinabove that the fraud has been defined under Section 17 of the Contract Act as has been referred hereinabove, which means that any active concealment of the fact and as has been referred above on the basis thereof, it is the considered view of this Court that while making an application for mutation, it was incumbent upon the petitioner to approach before the mutating authority with clean hands i.e., by the document pertaining to the nature of land having not done so, it will be said to be active concealment on his part, therefore, it will come under the fold of definition of fraud as has been defined under Section 17 of the Contract Act, therefore, the argument advanced on behalf of the petitioner that there is no fraud, is not acceptable and as such the same is rejected. The third point which has been raised with respect to nonobservance of principle of natural justice but as would appear from the impugned order that after issuance of notice, the petitioners have appeared and participated in the proceeding and after providing due opportunity of hearing, the order has been passed, therefore, it is not a case where it will be said to be in violation of principle of natural justice. 17. Learned counsel for the petitioner has relied upon an unreported judgment passed by the Division Bench of this Court in L.P.A. No. 142 of 2010 disposed of on 19.08.2017 but by going across the factual aspect revolving round therein, it transpires that the question fell for consideration before the Court was merely on the presumption on the part of the halka karamchari that the land in question is Gairmazurwa Mallick, is permissible but that judgment is not applicable in the facts and circumstances involved in this case as because it is the specific case of the State as per the entry made in the Khatiyan that the nature of land is Gairmazurwa Khas “jungle” and looking to the nature of land to be a forest one and considering the implication of the judgment rendered by the Hon’ble Apex Court on environmental issues, as referred above, if any interference would be shown in the decision taken by the authority that will lead to loosing of the identity of land, nature of which is of “Jungle” which ultimately will affect the ecological balance and the sustainable development. 18. In view of the entirety of the facts and circumstances of the case, this Court is of the view that the order passed by the authority as has been impugned is not such of a nature warranting any interference by this Court sitting under Article 226 of the Constitution of India by issuing the writ of certiorari. 19. Accordingly, these writ petitions fail and hence, dismissed.