TaxTMI 
TaxTMI 
2012 (1) TMI 386
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....ction 32G of the B.T. & A.L. Act, 1948 before the Tahasildar South Solapur. On the same day the statement of the Petitioner and late Andappa were shown to have been recorded without issuing any notice on the Application and an Order was passed on the same day thereby declaring that the Petitioner has purchased 1/2 northern portion of land bearing Gat No. 98 to the extent of 2 Hector 2 R from late Andappa. It is an admitted position that this order was however, not challenged. It is also an admitted position that late Andappa was an illiterate person whereas the Petitioner was employed in Indian Railways. 3. In the year 1984 late Andappa filed Tenancy Application No. 107 of 1984 under Section 31, 32R and 33-B of the Act before the Additional Tahasildar and ALT, South Solapur. The Application was filed on the basis that the order of statutory purchase in respect of northern 1/2 portion of Gat No. 98 was obtained on the basis of false documents and that the Petitioner is not cultivating the said land personally and gives land to other persons as the Petitioner was serving at Miraj Railway Station. The ALT issued notice of this Application and the Petitioner filed reply. Evidence wa....
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....lication filed by deceased Andappa on 30.1.1984 u/s. 31, 33-B and 32-R of the B.T. & A.L. Act, is not tenable in itself for getting possession. The applicant u/s 31 is to be filed before 31.3.1957. The application u/s 33-B can be filed after obtaining exemption certificate. The application u/s 32-R is applicable only if the purchaser fails to cultivate the land personally and if the purchase had been made u/s. 32-O of the B.T. & A.L. Act. In such case, the purchaser would be evicted and the land shall be disposed off u/s. 84-C of the Tenancy Act. In such case, even direct possession cannot be demanded. So, the application for possession filed by the applicant u/s 31, 33-B and 32-R is not itself tenable in respect of possession to him. However, he has challenged the order passed u/s 32-O by pointing out that the order passed u/s 32-O was illegal and nullity. So, the order passed u/s. 32-O will have to be set aside and the matter will have to be remanded to the trial court to start fresh proceeding u/s. 32-O and to decide it according to law, Proceeding u/s 32-O can be started on application of any party or it cannot be started suo-motu u/s 32-P of the B.T. & A.L. Act. In the result,....
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....r be a nullity and, hence, the learned Member of the MRT could not have reopened the said order nor could have directed the fresh enquiry about validity or otherwise of the said order. It is submitted that even void order has to be challenged in appropriate proceedings in appropriate time and even void order cannot be ignored by other courts or authorities even in collateral proceedings. f) It was lastly urged that assuming again for the sake of argument that the Order dated 19/12/1975 is a nullity, unless and until the same is set aside by the appropriate proceedings, the same remains as a valid order and cannot be ignored. This argument was specifically advanced without prejudice to the earlier submissions. g) In support of these submissions they relied upon the following Judgments : (i) M. Meenakshi & ors. v/s. Metadin Agarwal & ors. and paragraphs 17 and 18 thereto were relied upon. (2006) 7 SCC 470 (ii) Collector of Central Excise, Kanpur v/s. Flock (India) Pvt.Ltd. (2000) 6 SCC 650 and paragraph 10 thereof was relied upon. (iii) Pankaj Bhargava & Anr. v/s. Mohinder Nath & Anr. (1991) 1 SCC 556 and the observations in paragraphs 13,....
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....e disposed of in accordance with the provisions of section 84C. 11. Late Andappa has also referred to Section 33B of the Act. However, reference to Section 33B was obviously misnomer since an Application under Section 33B can be filed only by certificated landlord who has obtained certificate under Section 88C. Thus the Application filed by the Respondent late Andappa was essentially an Application filed under Section 32R and reference to Sections 31 and 33B was a misnomer. In fact even the learned Member, MRT has held that the Application filed by Andappa is not maintainable. In my opinion, the said Application has been rightly dismissed and there is no need to interfere with that part of the operative order passed by the learned Member, MRT. 12. Consideration of the controversy involved in this Petition will however depend on the following 2 aspects namely (a) whether the Order dated 19/12/1975 passed by the ALT South Solapur in proceedings under Section 32O can be held to have been obtained by practising fraud? (b) Whether the said order can be held to be a nullity? If the answer to the aforesaid question No. a or b is in favour of the Respondents even then the impugned or....
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....ection 32-R, the Authorities under the Act could not have gone into the question as to whether the earlier Order dated 19/12/1975 had been obtained by fraud or not. Hence I answer the question (a) accordingly and hold that in these proceedings it was not open to the Authorities to go into the question as to whether the Order dated 19/12/1975 was obtained by fraud or not. I however, do not propose to foreclose the remedy of heirs of Late Andappa to challenge the said order on the ground that it was obtained by fraud either by filing an Appeal or by filing an application for setting aside the said Order. It would also be open to the Respondents to raise this question before the Civil Court by filing a Suit for appropriate reliefs. All the contentions of the respective parties in that behalf will have to be kept open and which are accordingly kept open. 15. It is however necessary to answer the question No. (b) as to whether the Order dated 19/12/1975 can be said to be a nullity. The consideration of this question will have to be divided in 2 parts. If an Order is obtained by playing fraud upon a statutory Authority it still becomes nullity. However, as stated above, that question ....
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.... been the subject-matter thereof. The Plaintiff although being a person aggrieved could have questioned the validity of the said orders, did not chose to do so. Even if the orders passed by the competent authorities were bad in law, they were required to be set aside in an appropriate proceeding. They were not the subject matter of the said suit and the validity or otherwise of the said proceeding could not have been gone into therein and in any event for the first time in the Letters Patent Appeal. 18. It is a well-settled principle of law that even a void order is required to be set aside by a competent court of law inasmuch as an order may be void in respect of one person but may be valid in respect of another. A void order is necessarily not non est. An order cannot be declared to be void in a collateral proceeding and that too in absence of the authorities who were the authors thereof. The order passed by the authorities were not found to be wholly without jurisdiction. They were not, thus, nullities. 20. In Collector of Central Excise(supra) the Supreme Court has observed in paragraph-10 as under : 10. Coming to the question that is raised there is little....
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.... inherent jurisdiction or a proceeding that wears the brand of invalidity of its forehead that might afford a defence even against enforcement. Shri Sachhar is right in his contention that such a collateral challenge may not be available where there is no lack of inherent jurisdiction but what is disputed is only the existence or non-existence of facts which though collateral to the merits do require investigation into and adjudication upon their existence or non-existence on the basis of evidence. If the parties before the Rent Controller have admitted that the fact or the event which gives the Controller jurisdiction is in existence and there was no reason for the Controller to doubt the bona fides of that admission as to a fact or event, the Controller is under no obligation to make further enquiries on his own as to that factual state. The test of jurisdiction over the subject matter is whether the court or Tribunal can decide the case at all and not whether the court has authority to issue a particular kind of order in the course of deciding the case. 21. A learned author says: A court is said to have jurisdiction of the subject matter of a particular controv....
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....rity of them, it may be necessary for a subject, in order to safeguard himself, to go to the court for declaration of his rights... (emphasis supplied) 23. The contention of Shri Rohtagi as to this particular remedy being available to a tenant in such circumstances is, in the ultimate analysis, not as sound as it might at first sight appear. The expression 'fraud on the statute' is merely a figurative description of a colourable transaction to evade the provisions of a statute and does not, for purposes of choice of the remedy, distinguish itself from the consequences of fraud as vitiating the permission Under Section 21 referred to in Vohra's case. 22. In Pandharinath Kavitke (supra) the learned Single Judge has observed thus in paragraphs 9 to 11 : 9. Now coining back to the contention raised on behalf of the Respondent that since the order passed by the Tenancy Court on 15.7.1963 in proceedings under Section 32G was nullity, the appeal preferred by the Respondent in May 1983 against the said order, although beyond limitation, was maintainable, I am afraid the same deserves to be stated to be rejected. In my view, if this stand taken by t....
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....rt (see : Administrative Law, 6thEd. p. 352) Prof. Wade sums up these principles: "The truth of the matter is that the Court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances, the order may be hypothetically a nullity, but the Court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his right, or for some other legal reason. In any such the 'void' order remains effective and is in reality void. It follows that an order may be void for one purpose and valid for another, and that it may be void against one person but valid against another (ibid p. 352) Para 8. It will be clear from these principles, the party aggrieved by the invalidity of the order has to approach the Court for relief of declaration that the order against him is inoperative and not binding upon him. He must approach the Court within the prescribed period of limitation. If the statutory time limit expires the Court cannot give the declaration sought for. The Apex Court has thus held that invalidity of the order, thoug....
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....f the order passed under Section 32G by filing an appeal but the said appeal ought to have been filed within limitation and not after a lapse of over 20 years, that too without giving any plausible explanation leave alone sufficient cause for condoning the delay of 20 years. 11. The view which I have been taken has already been considered by different Benches of this Court. In the case of Narhar Shamrao Deshpande v. Lakhu Raghu Dalvi, (Since deceased) through his heirs, Yeshwant Laxman and Anr., 1984(1)BomCR14 Justice R.D. Tulpule, as he then was, has dealt with similar contention and has rejected the same. In my view the said decision would squarely apply to the facts of the present case. In another decision in Madhavdas Damodardas Gujar and Ors. v. Mahadu Kern Raul, 1994(1)BomCR509 following the aforesaid decision of Justice Tulpule, this Court has reiterated the said legal position. Another decision of Justice R.M. Lodha reported in has also held that the appeal filed against an order which is alleged to be null and void needs to be filed within limitation or at least sufficient cause should be shown for condoning the delay. There is one more decision of this Court whic....
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....tected tenant or a permanent tenant. Thus the controversy involved in an Application under Section 32O was clearly a controversy which fell within the scope of sub-clause (b) of Section 70 of the Act and the Mamlatdar & ALT, South Solapur was the statutory authority who was conferred with the jurisdiction to decide the question as to whether the Petitioner was a tenant in respect of the northern 1/2 portion of Gat No. 98 owned by Late Andappa. In view of this it cannot held that the Order passed on 19/12/1975 was an Order passed by an Authority suffering from inherent lack of jurisdiction and to that extent part of the question (b) will have to be answered in favour of the Petitioner and against the Respondents. 26. As an outcome of the aforesaid discussion, I pass the following order : (i) Rule is made partly absolute. The impugned Judgment and Order passed by the learned Member of the M.R.T., Pune in Revision Application No. 218 of 1989 to the extent it holds that Tenancy Application No. 107 of 1984 filed by Late Andappa Walekar before the Tahasildar & ALT, South Solapur was liable to be rejected is not interfered with. (ii) However, the impugned Ord....