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2019 DIGILAW 1728 (ALL)

Kalu Ram v. D. D. C.

2019-07-18

J.J.MUNIR

body2019
JUDGMENT : J.J. Munir, J. 1. Heard Sri B. Malik, learned counsel appearing for the petitioners, Sri N.C. Rajvanshi, learned Senior Advocate assisted by Sri P.C. Shukla, learned counsel appearing on behalf of respondent no.3. Sri Y.D. Sharma, learned counsel appearing on behalf of respondent no.5, Sri Vikrant Rana, learned counsel appearing on behalf of respondent no.4, and Sri Sudhir Mehrotra, learned counsel representing the Administrator General. 2. This writ petition has been filed by the original petitioner, one Kalu Ram son of Sri Bhajjan, now represented by his heirs and legal representatives, petitioner nos.1/2/1, 1/2/2 and 1/2/3, challenging an order of the Deputy Director of Consolidation, Ghaziabad dated 27.02.1997, whereby he has allowed Revision no.507 filed by original respondent no.2, Smt. Risalo, and set aside an order dated 10.09.1990 passed by the Consolidation Officer. By the order last mentioned the Consolidation Officer acting on a compromise dated 24.07.1987, and verified by the Deputy Director of Consolidation, had recorded shares of parties in the Consolidation Records. Also set aside by the impugned order is an order, dated 03.09.1993 passed by the Consolidation Officer, Ghaziabad, rejecting an application on behalf of Smt. Risalo to set aside the order dated 10.07.1990, by which the compromise was implemented. The Deputy Director in the same stroke also set at naught an order dated 26.08.1996 passed by the Settlement Officer of Consolidation dismissing an appeal under Section 11(1) of the U.P. Consolidation of Holdings Act carried by respondent no.2 from the order of the Consolidation Officer, refusing to set aside his order dated 10.07.1990. The result of the Deputy Director of Consolidation's order dated 27.02.1997, that is impugned here is that the parties are put back to the position as it existed prior to 10.07.1990 regarding their respective shares recorded in the land in dispute, which is detailed hereinafter. 3. The background of the dispute leading to this writ petition according to the petitioners is that one, Vishram was the original recorded tenure holder of the property in dispute. He was survived by two sons, Bhajjan and Chhotia. Risalo was Chotia's wife and the couple were issueless. Half share in the land in dispute upon Vishram decease went to Chhotia, and upon his death to Risalo as his widow. Bhajjan had two sons, Kalu and Jagmal. Kalu is the original writ petitioner here. He was survived by two sons, Bhajjan and Chhotia. Risalo was Chotia's wife and the couple were issueless. Half share in the land in dispute upon Vishram decease went to Chhotia, and upon his death to Risalo as his widow. Bhajjan had two sons, Kalu and Jagmal. Kalu is the original writ petitioner here. He survived by his heirs, Satish, Santram, Jeetram and Baleshwar, all of whom are Kalu's grandsons, and arrayed here as petitioners. The widow of Chhotia, Risalo remarried, post inheritance, one Bahodu. In course of time, Bahodu also died and Risalo survived him. However, Risalo's name continued to be recorded in the land in dispute, that she had inherited from her first husband, the late Chhotia. 4. According to the petitioners' case, Kalu, who represents the branch of Bhajjan, upon Risalo's remarriage, put forward a case based on reversionary rights under Section 172 of the U.P. Z.A. & L.R. Act claiming that all that she had inherited from Chhotia, her first husband, upon remarriage would revert back to the branch of Bhajjan. This is what has given rise to the dispute leading to the present writ petition. 5. It appears that upon notification of consolidation proceedings, this claim based on reversion was put forward by Kalu, but before the Assistant Consolidation Officer, a compromise was claimed to have been recorded on 20.10.1983 between Kalu and Risalo. This compromise was challenged by means of five appeals to the Settlement Officer of Consolidation being Appeal nos.449, 447, 442, 450 and 448, all of which came to be decided by the Settlement Officer of Consolidation vide judgment and order dated 02.06.1984. These appeals came to be dismissed as time barred, though with some remarks on merits also. 6. Aggrieved by this order dated 02.06.1984, Kalu went up in Revision to the Deputy Director of Consolidation, Ghaziabad vide Revision no.880 of 1984, arraying as parties, Smt. Risalo and Jagmal son of Bhajjan (Kalu Ram's brother). In the said revision, again a compromise was recorded on 24.10.1985, where parties including Kalu and Smt. Risalo (the latter thumb marked) were identified by their respective counsel. This compromise after verification by the Deputy Director of Consolidation was sent by a detailed order to the Consolidation Officer, after setting aside the orders under challenge in Revision no.880 of 1984 with a direction that the Consolidation Officer may carry out the order. This compromise after verification by the Deputy Director of Consolidation was sent by a detailed order to the Consolidation Officer, after setting aside the orders under challenge in Revision no.880 of 1984 with a direction that the Consolidation Officer may carry out the order. This order was passed on 24.10.1985, and reads thus (in Hindi vernacular): ^^mijksDr foospuk ds vuqlkj fuxjkuh Lohdkj dh tkrh gSA v/khuLFk U;k;ky;ksa }kjk ikfjr vkns'k fujLr fd;s tkrs gSA i=koyh fo}ku pdcanh vf/kdkjh ds U;k;ky; esa fu;ekuqlkj fuLrkj.k gsrq izR;kfofrZr dh tkrh gSA^^ 7. The Consolidation Officer before whom the compromise went in compliance with the order dated 24.10.1985 passed by the Deputy Director of Consolidation, carried out the terms of the compromise in the Consolidation Records, as already said hereinbefore vide order dated 10.07.1990. The parties were recorded in the Consolidation Records in terms of the aforesaid compromise. 8. Once again hostilities erupted between parties, with Risalo filing an application to the Consolidation Officer claiming that the compromise that has been recorded before the Deputy Director of Consolidation, was fraudulent and does not bear her signatures. The said application for restoration made by Risalo, was rejected by the Consolidation Officer vide order dated 03.09.1993. 9. Aggrieved by the order dated 03.09.1993, an appeal was carried to the Settlement Officer of Consolidation, who dismissed the appeal and affirmed the order last mentioned, passed by the Consolidation Officer. 10. Aggrieved by both these orders, Revision no.507 was filed by Risalo, which has come to be allowed by the impugned order. 11. Before proceeding to consider the merits of the petitioners' challenge to the impugned order dated 27.02.1997 passed by the Deputy Director of Consolidation, it would be necessary to place developments during the course of pendency of this writ petition where a number of parties have been substituted, and/ or impleaded. 12. Omdev Singh, Bhajjan and Ramdev son of Raj Kumar, have been impleaded as respondent nos.5, 6 & 8 to the petition on the basis of a registered will dated 05.12.1990 executed by Smt. Risalo, respondent no.2, bequeathing her entire estate in favour of aforesaid three. They have been impleaded vide order dated 16.05.2018. Likewise, Vinod Kumar has been impleaded as respondent no.3 on the basis of a will dated 18.05.1999, executed in his favour, also by Risalo, bequeathing her entire estate to him. They have been impleaded vide order dated 16.05.2018. Likewise, Vinod Kumar has been impleaded as respondent no.3 on the basis of a will dated 18.05.1999, executed in his favour, also by Risalo, bequeathing her entire estate to him. Then respondent no.4 has also been impleaded under orders of this Court, dated 16.05.2018, claiming a right also from Risalo based on an agreement to sell, dated 31.12.1986. The Court has proceeded to implead all these parties who claim to represent the estate of deceased Risalo, not in the sense that their claims to title have been accepted, but only for the purpose of prosecuting this litigation. The Court also considering the fact that there is no heir or legal representative left by Smt. Risalo as per report of the Consolidation Officer, has proceeded in accordance with the provisions of Order XXII Rule 4A CPC to appoint the Administrator General, U.P. to represent the estate of the deceased, Risalo. 13. This Court must place on record the fact that the Court is assured, in the midst of much unsurety about what claim is made by which party and to what extent it is right, that the estate of Risalo is more than well represented here. 14. A perusal of the impugned order passed by the Deputy Director of Consolidation shows that after remand post verification of the compromise, the papers were laid for orders before the Consolidation Officer, who issued notice to Smt. Risalo on 09.01.1990, returnable on 23.01.1990. He has further perused the record and held that it reveals that no process, in fact, was issued to Smt. Risalo, and nobody appeared on her behalf before the Consolidation Officer. It has been held that on 10.07.1990, the order passed against Smt. Risalo was ex parte, and that by the said order the compromise dated 24.10.1987 (sic 24.10.1985) was accepted; and on its basis the settlement of rights of parties was made. He has further recorded a finding that the Consolidation Officer without bestowing any consideration to the application made by Risalo to set aside the order dated 10.07.1990, has rejected the same. The Deputy Director of Consolidation has recorded a further finding that he is in agreement with the submission of the learned counsel appearing for Risalo that it was necessary to get the compromise dated 24.10.1987 set aside. The Deputy Director of Consolidation has recorded a further finding that he is in agreement with the submission of the learned counsel appearing for Risalo that it was necessary to get the compromise dated 24.10.1987 set aside. He has also said that he has while setting out the controversy in the body of his order noticed that the claim of Kalu Ram as regards Khata nos.13 and 14 is barred by res judicata, and so far Khata no.252 is concerned, Kalu Ram has not put forward any convincing evidence to establish his claim. He has then proceeded to set aside the various orders passed by the authorities below refusing to disturb the compromise recorded between parties and given effect to vide order dated 10.07.1990. It must be remarked at once that the Deputy Director of Consolidation was required to see in the Revision pending before him whether the compromise which the Deputy Director of Consolidation verified on 24.10.1985 was, indeed, a fraudulent compromise or a genuine compact between parties. This the Deputy Director of Consolidation has not done at all. Instead, he has recorded findings, that are all irrelevant and non-germane to this principal issue alone, which the Deputy Director of Consolidation was required to determine. The Deputy Director of Consolidation has commented much on the fact that notice to Risalo was not issued by the Consolidation Officer before he passed the order dated 10.07.1990 implementing the compromise arrived at between parties, that was verified by the Deputy Director of Consolidation. 15. This Court thinks that before the Consolidation Officer, there was hardly any necessity of notice to any of the parties inasmuch as the matter had been sent to Consolidation Officer for giving effect to the compromise, that had been verified by the Deputy Director of Consolidation in Revision no.880 of 1984 vide order dated 24.10.1985. The Consolidation Officer was only an executing agency and while he may have had some adjustment to make in the rights of parties in calculating their precise entitlement and delivering on spot possession, he had nothing more to do. If grievances had arisen to parties relating to execution of the compromise, absence of notice to Risalo would have mattered; but that is not the issue. If grievances had arisen to parties relating to execution of the compromise, absence of notice to Risalo would have mattered; but that is not the issue. The issue is about genuineness of the compromise, which was recorded and verified by the Deputy Director of Consolidation, and this was sent down to the Consolidation Officer for giving effect to it. 16. In this context, the findings of the Deputy Director of Consolidation as regards the absence of notice to Risalo are completely out of place and irrelevant. Likewise, the findings in the impugned order regarding Kalu Ram's claim to Khata nos.13 & 14 being barred by res judicata, or the failure of Kalu Ram to produce any convincing evidence as to his claim regarding Khata no.252, are equally irrelevant. What is relevant, to emphasize time over again is to judge the genuineness of compromise that the Deputy Director of Consolidation recorded on 24.10.1987. This exercise the Deputy Director of Consolidation has not at all undertaken. The order, which he had made could only be made in the event the Deputy Director of Consolidation had come to a conclusion that the compromise that was recorded before him was based on a fraud practiced upon Risalo, and the resultant compromise was the result of this fraud. No other finding, given the background in which the parties have already compromised and adjusted their rights can justify the order made by the Deputy Director of Consolidation under challenge here. The fact that fraud does vitiate all solemn transactions is eloquently dealt with by their Lordships of the Supreme Court in the context of a compromise in Banwari Lal vs. Smt. Chando Devi (through L.R.) and another, 1993 SCC 581 , where in paragraph 14 of the report, it has been held: "14. The application for exercise of power under proviso to Rule 3 of Order 23 can be labelled under Section 151 of the Code but when by the amending Act specifically such power has been vested in the Court before which the petition of compromise had been filed, the power in appropriate cases has to be exercised under the said proviso to Rule 3. It has been held by different High Courts that even after a compromise has been recorded, the court concerned can entertain an application under Section 151 of the Code, questioning the legality or validity of the compromise. It has been held by different High Courts that even after a compromise has been recorded, the court concerned can entertain an application under Section 151 of the Code, questioning the legality or validity of the compromise. Reference in this connection may be made to the cases Tara Bai (Smt) v. V.S. Krishnaswamy Rao, 1985 AIR (Kar) 270 : ILR 1985 Kant 2930; S.G. Thimmappa v. T. Anantha, 1986 AIR (Kar) 1 : ILR 1985 Kant 1933]; Bindeshwari Pd. Chaudhary v. Debendra Pd. Singh, 1958 AIR (Pat) 618 : 1958 BLJR 651; Mangal Mahton v. Behari Mahton, 1964 AIR (Pat) 483 : 1964 BLJR 727 and Sri Sri Iswar Gopal Jew v. Bhagwandas Shaw, 1982 AIR (Cal) 12 where it has been held that application under Section 151 of the Code is maintainable. The court before which it is alleged by one of the parties to the alleged compromise that no such compromise had been entered between the parties that court has to decide whether the agreement or compromise in question was lawful and not void or voidable under the Indian Contract Act. If the agreement or the compromise itself is fraudulent then it shall be deemed to be void within the meaning of the explanation to the proviso to Rule 3 and as such not lawful. The learned Subordinate Judge was perfectly justified in entertaining the application filed on behalf of the appellant and considering the question as to whether there had been a lawful agreement or compromise on the basis of which the court could have recorded such agreement or compromise on February 27, 1991. Having come to the conclusion on the material produced that the compromise was not lawful within the meaning of Rule 3, there was no option left except to recall that order." (Emphasis supplied) 17. To the same end is another decision of the Supreme Court in Delhi Development Authority vs. Bankmens Co-Operative Group Housing Society Ltd. & others, 2017 7 SCC 636 , where it has been held in paragraphs 16, 17, 18 & 21 of the Report thus: "16. To the same end is another decision of the Supreme Court in Delhi Development Authority vs. Bankmens Co-Operative Group Housing Society Ltd. & others, 2017 7 SCC 636 , where it has been held in paragraphs 16, 17, 18 & 21 of the Report thus: "16. It is further urged by Shri Ranjit Kumar that the revival of the Societies was a fraudulent act and he submits that fraud vitiates all decisions and in this regard, he made reference to the judgment of this Court in Bhaurao Dagdu Paralkar v. State of Maharashtra Bhaurao Dagdu Paralkar v. State of Maharashtra, 2005 7 SCC 605 , relevant portions of which read as follows: (SCC pp. 611-12, paras 9-11) "9. By "fraud" is meant an intention to deceive; whether it is from any expectation of advantage to the party himself or from ill will towards the other is immaterial. The expression "fraud" involves two elements, deceit and injury to the person deceived. Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable, or of money and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver, will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied.... 10. 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.... 11. "Fraud", as is well known, vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letters or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former, either by words or letters. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by wilfully or recklessly causing him to believe and act on falsehood. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by wilfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations, which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of others in relation to a property would render the transaction void-ab-initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res-judicata." 17. We have heard the learned counsel for the respondents and they have also filed their written submissions. It would be pertinent to mention that the counsel for the respondents have not countered the submission of the learned Solicitor General that the revival of the Societies was illegal and fraudulent. The main submission is that the new members were validly granted membership in Bankmens CGHS. They are not at fault and hence, they should not be made to suffer. It is also urged that the allegation that Rs 67,38,800 was paid out of the funds of builders is incorrect and, in fact, this amount was paid out of the funds of the Society. 18. In Safdarjung CGHS, additional grounds have been taken that DDA had not, in fact, challenged the orders dated 27-2-2012 [Safdarjung Coop. Group Housing Society Ltd. v. Registrar of Coop. Societies,2012 SCCOnLine(Del) 6454] and 22-8-2012 [Safdarjung Coop. Group Housing Society Ltd. v. Registrar of Coop. Societies,2012 SCCOnLine(Del) 6456] but only after the land which was the subject-matter of dispute in Bankmens CGHS case [Indian Statistical Institute Coop. Group Housing Society Ltd. v. Union of India,2004 SCCOnLine(Del) 1244] was illegally given to some third party, it was felt by officials of DDA that contempt proceedings may be initiated against them and, therefore, the appeal was filed in Safdarjung CGHS case also. Group Housing Society Ltd. v. Union of India,2004 SCCOnLine(Del) 1244] was illegally given to some third party, it was felt by officials of DDA that contempt proceedings may be initiated against them and, therefore, the appeal was filed in Safdarjung CGHS case also. Again on merits, all that has been stated is that after revival in the year 1999, the membership is genuine and bona fide and that the genuine members cannot be denied what is rightfully due to them. 21. As repeatedly held by this Court, when an action is based on fraud, the same cannot withstand the scrutiny of law. The revival of these Societies is mired in controversy. When we talk of revival, it would normally mean that the Society is being revived by its original members. As far as these two cases are concerned, the move for revival was started by persons who were not even members or promoters of the original Society. The revival of Societies was funded by the builders. The original members have all vanished into thin air. There is no explanation as to how they resigned and who accepted their resignations. There is nothing on record to show how Rajan Chopra, in case of Bankmens CGHS and Mahanand Sharma, in case of Safdarjung CGHS, were entitled to file the application for revival. We also cannot lose sight of the fact that both the Societies were put under liquidation because they could not furnish some information to the Office of RCS. There is not even a plea that when the revival was done, RCS was satisfied that the reasons for which the Societies were liquidated no longer existed. It is also obvious that memberships kept changing and almost all the members of these two Societies are persons who were granted membership after the year 2003 i.e. after the cut-off date referred to in Yogi Raj Krishna CGHS case [Yogi Raj Krishna Coop. Group Housing Society Ltd. v. DDA, 2008 SCCOnLine(Del) 1602]. We are, therefore, clearly of the view that the very revival of the Societies is illegal and that when the foundation falls, the edifice which has been developed on the foundation, must go." (Emphasis by Court) 18. Group Housing Society Ltd. v. DDA, 2008 SCCOnLine(Del) 1602]. We are, therefore, clearly of the view that the very revival of the Societies is illegal and that when the foundation falls, the edifice which has been developed on the foundation, must go." (Emphasis by Court) 18. The principles adumbrated in the aforesaid decisions of their Lordships, which learned counsel for all parties appearing in this case acknowledge to be the correct position of the law, would lead to the conclusion that fraud would vitiate a solemn transaction recorded in howsoever solemn proceedings. It would also not the matter how old that fraud is with the only practical limitation that the fraud should not be so ancient that there is no evidence forthcoming by which a party can establish the fraud. 19. In the present case, a perusal of the impugned order shows that the Deputy Director of Consolidation has gone completely astray, and decided the revision on absolutely irrelevant considerations. It must also be noticed that the parties also knocked at the wrong door. Aggrieved by the compromise as they were, they ought to have applied to the Deputy Director of Consolidation, before whom the compromise was verified on 24.10.1987, and who accepted it. The Consolidation Officer had the role of an Executing Court, at best. As such, the resort the parties took to the Consolidation Officer to set aside the compromise was by no means well advised. But, that does not absolve the Deputy Director of Consolidation of his duty to determine the real and substantial issue between parties, which is about the genuineness of the compromise, by which all those who stand against Risalo, affirm whereas all those who stand by Risalo, dispute. The Deputy Director of Consolidation, therefore, is required to determine going by relevant evidence as to whether the compromise recorded before him on 24.10.1987 and verified by him on the said date was genuine or not. He was not required to go into any other issue. As such, the impugned order passed by the Deputy Director of Consolidation is manifestly illegal, and cannot be sustained. 20. In the result, this petition succeeds and is allowed. He was not required to go into any other issue. As such, the impugned order passed by the Deputy Director of Consolidation is manifestly illegal, and cannot be sustained. 20. In the result, this petition succeeds and is allowed. The impugned order dated 27.02.1997 by the Deputy Director of Consolidation in Revision no.507 is hereby quashed with a remit of the matter to the Deputy Director of Consolidation, who will decide the said revision afresh in accordance with the guidance in this judgment, within a period of six months from the date of receipt of a certified copy of this judgment, after hearing all parties concerned, including those who were parties here, in particular, the Administrator General, U.P., who represents the estate of Smt. Risalo. Costs easy.