TaxTMI 
TaxTMI 
2007 (6) TMI 547
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....older under the provisions of Urban Land (Ceiling and Regulation) Act, 1976 (for short Ceiling Act) with surplus area of 36,315.80 sq. mts. and as such the said surplus land vested in the State Government by virtue of notification dated 26-10-1989 under Section 10(3) of the Ceiling Act. On 12-10-1990 the said land was allotted to the petitioner-MHADA and accordingly possession was taken on 31-10-1990. Respondents 1 to 3 and original respondent No. 4 Ramji Mahadeo Darokar, now dead, had together filed Regular Civil Suit No. 1068 of 1991 on 22-4-1991 in the Court of Civil Judge, Sr. Dn., Nagpur, for declaration and permanent injunction. Ramji claimed to be the owner of the same land admeasuring 3.235 acres bearing Field Survey No. 75/2K (Old), i.e. Kh. No. 140 (new). Under registered sale-deed dated 11-10-1990 Ramji sold two acres out of the said land to respondents 1 to 3 and by another sale-deed dated 15-10-1990 he sold the remaining 1.235 acres of land to respondent No. 3. Ramji claimed that he received the said piece of land in partition amongst his brothers Gomaji Darokar and Narayan Darokar and that is why he was the owner of the said land admeasuring 3.235 acres. The suit was ....
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....under: The plff. and deft. No. 2 submit that amongst all issues framed by this Hon'ble Court, the issues No. 4-A and 4-B are only relevant for deciding the suit. All other issues have become redundant. Hence evidence of deft. 2 be only recorded. Hence this joint pursis. Nagpur: Dt. : 30-10-1999 Sd/ S.D. Dewani, C. for plff. Sd/- B.G. Kulkarni, C. for deft. No. 2. This pursis is admittedly not signed either by the Government Pleader or by defendant No. 1. Defendant No. 1 is not deleted from the suit. The pursis is not signed by any of the parties to the suit. It is stated in the pursis that except issues No. 4-A and 4-B all other issues have become redundant. After filing of the pursis, as aforesaid, on the same day without recording evidence of any of the plaintiffs, straightway evidence of Chandrashekhar Dhande (witness No. 1 for defendant No. 2) was recorded on behalf of petitioner-MHADA by Shri B.G. Kulkarni, Advocate for the petitioner. Perusal of evidence of this witness shows that he admitted that Ramji was the owner of the suit land and in cross-examination he admitted everything against the inter....
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....kar as owner of the lands and respondent No. 4 Ramji did not file a single document showing his ownership on the suit land nor any of the plaintiffs tendered oral evidence in the suit. (iv) The total area of 3.23 acres difference comes to 1,42,360 sq. ft. and the Civil Court has ordered release of 14,526.32 sq. mts. (i.e. 1,45,260 sq.ft.) which clearly shows total non-application of mind on the part of Civil Court. (v) The Civil Court could not have acted without jurisdiction when its jurisdiction was specifically barred by Section 33 of the Ceiling Act and Section 177 of MHADA Act, 1976 and even if the parties wanted to confer jurisdiction on the Civil Court, the Court ought to have refused to exercise jurisdiction which it did not have. (vi) In the absence of service of statutory notice under Section 80 of the Civil Procedure Code and under Section 173 of the Act of 1976 the suit was liable to be dismissed. (vii) None of the plaintiffs entered witness box to prove their case, (viii) The petitioner-MHADA had never consented to the filing of pursis (Ex. 56) and without its consent the Advocate of the petitioner in collusion with the plai....
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....28 , Hamza Haji v. State of Kerala, (b) AIR2005SC3330 , Bhaurao Dagdu Paralkar v. State of Maharashtra and Ors., (c) AIR1994SC1673 , Ramchandra Ganpat Shinde v. State of Maharashtra and Ors., (d) 2004(4)BomCR302 , Sanjeev G Devre v. State of Maharashtra, (e) AIR2003SC3044 , Surya Dev Rai v. Ramchander Rai and Ors. (f) AIR1985SC1147 , Ram and Shyam Com. v. State of Haryana and Ors. (g) (2004)3SCC553 , ABL International Ltd. and Anr. v. Export Credit Guarantee Corporation of India Ltd. and Ors. 8. Submissions of respondents 1 to 4: Per contra, Mr. Ghare, learned Counsel for respondents 1 to 4 vehemently opposed the submissions made by Mr. Manohar and submitted as under: (i) The delay of seven years in filing the present writ petition against the impugned judgment and decree is not properly explained and though the petition was ready for filing the same was not filed for a period of about one year in this Court and hence the petition should be dismissed without going into any aspect of the matter. (ii) The remedy of regular appeal under Section 96 of the Code of Civil Procedure though being available, the present writ petition could not have been filed an....
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.... land was declared as surplus. It is also not in dispute that on 26-10-1989 a notification under Section 10(3) of the Ceiling Act was issued by which the suit land vested in the State Government. The sale-deeds dated 11-10-1990 and 15-10-1990 in favour of respondents 1 to 3 were executed by original plaintiff No. 4 Ramji in respect of the suit land, who was not even the owner of the said lands. The owner of the said lands was Gomaji Darokar. Ramji, who was plaintiff No. 4 in the suit in question, averred in the plaint that as a result of partition between his brothers Gomaji and Narayan, he became the owner of the suit land. Plaintiff No. 4 Ramji admittedly did not enter the witness box nor filed any evidence of partition or allotment of the suit lands in his favour in the trial Court. In the written statement, in paragraph 2, it is averred by the petitioners that it was Gomaji who was the owner who filed return under Section 6 of the Ceiling Act in respect of the suit lands and that plaintiff No. 4 Ramji had nothing to do with the suit lands. By evidence of Chandrashekhar Dhande (witness No. 1 for defendant No. 2) the fact that the suit land was allotted to petitioners-MHADA who w....
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.... for development in accordance with the circular dated 23-8-1988. It is most respectfully submitted that therefore the circular has apparently no connection with the said suit as Shri Ramaji Mahadeo Darokar was never a landholder or a landowner in Kh. No. 75/2K and the owner in the ULC proceedings and the person who had participated in the ULC proceedings was one Shri Gomaji Mahadeo Darokar. It is also pertinent to point out here that right from the year 1976 till the year 1990, the said Ramaji Mahadeo Darokar has never turned up at the acquisition proceedings nor has raised any objection which clearly shows that he had no connection with the said land. Also it is pertinent to point out here that in the Civil Court proceedings his name is shown as Ramaji Mahadeo Dharuka which might be a typographical error or it might also be a case where the plaintiff No. 4 along with plaintiff Nos. 1 and 2 are trying to take advantage of similar synonymous of Shri Gomaji Mahadeo Darokar and Ramaji Mahadeo Darokar. It is most respectfully submitted that the said Shri Chandrashekhar Pandharinath Dhande, being the officer of MHADA had no authority in law to submit before the Court in his ev....
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....dant No. 2 Shri B.G. Kulkarni filed a joint pursis without the consent of their clients and putting their own signatures thereon stating therein that in view of the issues, only the evidence of defendant No. 2 be recorded. It is most respectfully submitted that a bare perusal of the circular dated 23-8-1988 will clearly show that the said circular was not applicable to the case of plaintiff No. 1/respondent Nos. 1 to 4 in Regular Civil Suit No. 1068/91 at all. It is submitted that the said circular dated 23-8-1988 applies only to landowners/landholders who have participated in the proceedings before the ULC authorities. In the present case, it was only Shri Gomaji Mahadeo Darokar who was entitled for possession of the said 40% land if he had so applied. Plaintiff Nos. 1 to 4 are not covered by the circular dated 23-8-1988 and the judgment of the Hon'ble High Court dated 19-2-1997 is not concerned with Khasra No. 75/2 at all. 13. Respondents 1 to 4 have not chosen to rebut the averments in the writ petition despite opportunity being given to them. They stuck to their gun that the petition should be dismissed on preliminary objection to the maintainability of petition....
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....d on the basis that the said averments had been admitted by the respondents. 16. Reading of the written statement filed by defendant No. 2/petitioners shows that a specific plea that the Civil Court has no jurisdiction to entertain the suit for various reasons was taken and the learned trial Court could not have simply ignored the same. On the contrary, a duty was cast upon the trial Court to first examine whether it had jurisdiction to go ahead with the matter. Section 33 of the Ceiling Act reads thus: 33. Appeals : (1) An appeal against an order or award of the Collector shall lie to the Maharashtra Revenue Tribunal in the following cases: (1) an order under Sub-sections (2) and (3) of Section 13 [not being an order under which a true and correct return complete in all particulars is required to be furnished]; (2) a declaration [or any part thereof] under Section 21; [(2a) an order under Section 21-A;] (3) an award under Section 25; (4) an order refusing sanction to transfer or divide land under Section 29; (5) an order of forfeiture under Sub-section (3) of Section 29; (6) an amendment of declaration or a....
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....ot at all throw light as to how all other issues including the issues regarding jurisdiction became redundant. The pursis does not give any reason for saying so nor the impugned judgment of the trial Court shows any reason for the Civil Court to assume that the important issues regarding jurisdiction became redundant. In the absence of any justification, I do not think that the issue regarding jurisdiction of a particular Court can become redundant at least qua the Court exercising such jurisdiction. On the contrary, in my opinion, it is the responsibility of the Court to first examine whether it has jurisdiction or not. If the Court has no jurisdiction then the Court cannot touch the matter at all. In this case, the civil Court has failed in its duty to do so. On the contrary, there appears to be utter haste on the part of the plaintiffs and defendant No. 2, i.e. petitioners and their counsel and witness Chandrashekhar Dhande. The pursis was filed on 30-10-1999 under the signatures of Shri S.D. Dewani, counsel for the plaintiffs and Shri B.G. Kulkarni, counsel for defendant No. 2. The pursis is not signed by the Government Pleader for defendant No. 1 and it does not appear that th....
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....s 10, 11, 14, 15, 18, 20, 27 and 28 as under: It is true, as observed by De Grey, C.J., in R. v. Duchess of Kingston 2 SLC 687 that: "Fraud" is an extrinsic, collateral act, which vitiates the most solemn proceedings of Courts of justice. Lord Coke says it avoids all judicial acts, ecclesiastical and temporal. In Keer on Fraud and Mistake, it is stated that: In applying this rule, it matters not whether the judgment impugned has been pronounced by an inferior or by the highest Court of judicature in the realm, but in all cases alike it is competent for every Court, whether superior or inferior, to treat as a nullity any judgment which can be clearly shown to have been obtained by manifest fraud. Where fraud is involved, it has been held, in some cases, that a remedy at law by appeal, error, or certiorari does not preclude relief in equity from the judgment. Nor, it has been said, is there any reason why a judgment obtained by fraud cannot be the subject of a direct attack by an action in equity even though the judgment has been satisfied. The law in India is not different. Section 44 of the Evidence Act enables a party otherwise....
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....lf amounts to fraud. Indeed, innocent representation 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 representation 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. See Ram Chandra Singh v. Savitri Devi (2003)8SCC319 . 21. In the case of Ramchandra Ganpat Shinde and Anr. v. State of Maharashtra and Ors. reported in AIR1994SC1673 , the Apex Court said about collusion in para 9 as under: In Nagubai Animal v. B. Shamma R....
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....pported by the official correspondence of the petitioners-authorities in paragraphs 7 to 11 of the writ petition and the counter affidavit filed on 12-4-2007 in this Court, I am satisfied that the delay has been properly explained by the petitioners. At any rate, the petitioners being statutory authorities, which have to act through its lawyers, officers and servants and has to rely upon its lawyers, officers and servants, cannot be asked to explain day to day delay. However, in the averments in the petition and counter affidavit, as aforesaid, the delay has been explained supported by several documents which to my mind are sufficient to reject the argument that the petition should be dismissed on the ground of delay and laches. 25. The plea raised by the respondents about the availability of alternate remedy and exercise of jurisdiction by this Court under Articles 226 and 227 of the Constitution of India are being answered by me together. In the present case, as I have already found that the impugned judgment and decree is clearly vitiated due to fraud and collusion and in the light of pronouncement of law stated by me hereinbefore, there is a right and obligation in the super....
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.... is clear from the above enunciation of law that merely because one of the parties to the litigation raises a dispute in regard to the facts of the case, the Court entertaining such petition under Article 226 of the Constitution is not always bound to relegate the parties to a suit. In the above case of Gunwant Kaur this Court even to the extent of holding that in a writ petition, if the facts require, even oral evidence can be taken. This clearly shows that in an appropriate case, the writ Court has the jurisdiction to entertain a writ petition involving disputed questions of fact and there is no absolute bar for entertaining a writ petition even if the same arises out of a contractual obligation and/or involves some disputed questions of fact. 27. The above observations in paragraphs 17 and 19 in the light of the fact that material averments in the writ petition and the admitted facts on record compel me to hold that in fact there was no disputed question of facts in the present writ petition. Mr. Ghare, learned Counsel, for respondents 1 to 4 pressed into service the decision of Supreme Court in the case of A.P. Foods v. S. Samuel and Ors. reported in (2006)IIILLJ18SC . The s....