Judgment:
1 ® IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE21T DAY OF FEBRUARY, 2017 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH WRIT PETITION NO.10549 OF2008LR) BETWEEN: SRI SHIVADARSHAN BALSE AGED ABOUT53YEARS, S/O LATE RAMESH BALSE, NO.18, 7TH MAIN, MALLESHWARAM, BENGALURU. ... PETITIONER (BY SRI A.MADHUSUDHAN RAO, ADVOCATE FOR SRI S.D.N.PRASAD, ADVOCATE) AND:
1. THE STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT, M.S.BUILDING, DR.AMBEDKAR VEEDHI, BENGALURU – 560 001.
2. THE LAND TRIBUNAL BENGALURU NORTH TALUK, KIDS KEMP BUILDING, KEMPE GOWDA ROAD, BENGALURU – 09 REPRESENTED BY ITS SECRETARY. 2 3. SRI PILLAPPA AGED ABOUT78YEARS, S/O ARASAPPA, R/AT KAMMAGONDANAHALLI VILLAGE, YESHWANTHAPURA HOBLI, BENGALURU NORTH TALUK. *SINCE DECEASED BY LRS OF R3 3(a) SMT.CHENNAMMA AGED ABOUT68YEARS, W/O LATE PILLAPPA3b) SMT.MUNIGURAMMA AGED ABOUT50YEARS, D/O LATE PILLAPPA W/O SRI VENKATASWAMY, AGED ABOUT48YEARS, W/O SRI SIDDAPPA & D/O LATE PILLAPPA3c) SMT.PATLAMMA3d) SMT.HANUMAKKA AGED ABOUT45YEARS, D/O LATE PILLAPPA, W/O HANUMANTHARAYA, ALL ARE RESIDING IN A PORTION, SY.NO.34, MYADARAHALLI VILLAGE, YESHWANTHAPURA HOBLI, BENGALURU. *AMENDMENT CARRIED OUT AS PER
ORDERDATED0903.2009. 3 *AMENDMENT CARRIED OUT AS PER
ORDERDATED0702.2014. *4. SMT.K.K.ROSY W/O M.A.PORINCHU, AGED ABOUT70YEARS, RESIDING AT MYADARAHALLI, NEAR RAILWAY GATE, CHIKKABANAVARA, BENGALURU – 560 090.
5. SRI RAM CHANDRASHEKAR AGED ABOUT60YEARS S/O MUNIRAM, RESIDING AT NO.217, NEAR MARUTHI ENGINEERING WORKS, SANJAYANAGAR POST, GEDDALAHALLI, BENGALURU – 560 094.
6. SRI P.VIJAYAKUMARAN AGED ABOUT49YEARS, S/O P.BALAKRISHNAN NAIR, RESIDING AT NO.994, 2ND BLOCK, B.E.L.LAYOUT, VIDYARANYAPURA, BENGALURU – 560 097.
7. SMT.VIMALA AGED ABOUT51YEARS, D/O LATE GEORGE ROBINSON, RESIDING AT NO.217, NEAR MARUTHI ENGINEERING WORKS, SANJAYANAGAR POST, GEDDALAHALLI, BENGALURU – 560 094. 4 8. SRI K.M.SURESH MURTHY AGED ABOUT50YEARS, S/O LATE K.MAHADEVARAO, RESIDING AT NO.49/1, “KRUTHIKA”, ‘D’ BLOCK, TIRUMALA NAGARA, ATTUR POST, YELAHANKA NEW TOWN, BENGALURU – 560 064.
9. SMT.SHARMILA AGED ABOUT33YEARS, W/O SRI DENNY PRASAD, RESIDING AT NO.217, C/O KAMALA, NEAR MARUTHI ENGINEERING WORKS, GEDDALAHALLI, SANJAYANAGAR POST, BENGALURU – 560 094. AGED ABOUT40YEARS, 10. SMT.RATHNAMMA W/O CHOUDAPPA, 11. SRI MUNIRAJU12 SRI C.K.SANGRAM SINGH RESIDING AT C/O H.M.SATYANARAYANAREDDY, NO.3, H.M.R.NAGAR, MYADARAHALLI, CHIKKABANAVARA POST, BENGALURU – 560 090. AGED ABOUT54YEARS, S/O LATE SAMPANGAPPA, RESIDING AT MYADARAHALLI VILLAGE, CHIKKABANAVARA POST, BENGALURU – 560 090. AGED ABOUT63YEARS, S/O LATE C.H.KRISHNA SINGH, RESIDING AT NO.58, 3RD MAIN ROAD, VYALIKAVAL, MALLESHWARAM, 5 RESIDING AT NO.190, C/O MAHESHWARAPPA BUILDING, NAGAMMA LAYOUT, CHOKKASANDRA, BENGALURU – 560 095. BENGALURU – 560 003. AGED ABOUT50YEARS, 13. SMT.SHANTHAMMA W/O S.MARIGOWDA, 14. SMT.P.N.SALADEVEI W/O K.P.CHANDRASHEKARAN, 15. SMT.P.THANDHAVENI AGED ABOUT52YEARS, RESIDING AT111, R.M.V., 2ND STAGE, NEAR NANJAPPA COMPLEX, GEDDLAHALLI, BENGALURU – 560 094. AGED ABOUT59YEARS, W/O K.B.PADMANABHAN, RESIDING AT111, R.M.V., 2ND STAGE, NEAR NANJAPPA COMPLEX, GEDDLAHALLI, BENGALURU – 560 094. AGED ABOUT38YEARS, S/O KRISHNAPPA, RESIDING AT NO.99, 4TH CROSS, KARIM SAB LAYOUT, HEGGANAHALLI, VISHWANEEDAM POST, BENGALURU – 560 091.
16. SRI K.RAVI17 SMT.ALUMELU W/O NARASIMHA, AGED ABOUT37YEARS, RESIDING AT NO.23, 11TH CROSS, RAGHAVENDRA LAYOUT, SHETTIHALLI MAIN ROAD, 6 AGED ABOUT37YEARS, S/O SUKUMARAN, RESIDING AT SHARADHAMMA BUILDING, BEHIND RAMA TEMPLE, KAMMAGONDANAHALLI, JALAHALLI WEST, BENGALURU – 560 015. AGED ABOUT32YEARS, S/O MEHABOOB KHAN, RESIDING AT NO.4, NEW NO.132, 8TH MAIN, 8TH CROSS, CHURCH STREET, BRINDAVAN NAGAR, MATHIKERE, BENGALURU – 560 054. KAMMAGONDANAHALLI, BENGALURU – 560 015.
18. SRI ANIL KUMAR S19 SRI KALEEM KHAN20 SRI M.NAGAIAH21 SMT.SHAMEEMUNNISA W/O SHAMEEMULLA, AGED ABOUT33YEARS, S/O M.SUBBAIAH, RESIDING AT NO.11TH MAIN, 1ST CROSS, KALANAGAR, KAMMAGONDANAHALLI, JALAHALLI WEST, BENGALURU – 560 015. AGED ABOUT33YEARS, RESIDING AT NO.652, NO.12A, NEAR MUDDAPPA CIRCLE, DASAPPANAPALYA, CHIKKABANAVARA POST, BENGALURU – 560 090. 7 22. SRI S.SUNDARESWARA AGED ABOUT60YEARS S/O LATE K.SURYANARAYANA SHASRI, RESIDING AT NO.24, 3RD CROSS, SARASWATHIPURA, NANDINI LAYOUT, BENGALURU – 560 096. ... RESPONDENTS [BY SMT.B.P.RADHA, HCGP FOR R1 & R2 SRI SUNIL S.RAO, ADVOCATE FOR SRI T.SESHAGIRI RAO, ADVOCATE FOR R3(a & b) SRI B.V.SHANKARANARAYAN RAO, ADVOCATE FOR R4- R22 VIDE
ORDERDATED272.2009, SERVICE HELD SUFFICIENT IN R/O R3(c) AND (d)]. ***** THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDERVIDE ANNEXURE-K DATED28.1979 PASSED BY THE RESPONDENT NO.2 IN SO FAR AS IT RELATES TO GRANTING OCCUPANCY RIGHT IN RESPECT OF EXCESS LAND MEASURING TO AN EXTENT OF5ACRES14GUNTAS (OUT OF TOTAL EXTENT OF6ACRES34GUNTAS) IN FAVOUR OF THE3D RESPONDENT IN LAND BEARING SY.NO.34 SITUATED AT MYADARAHALLI VILLAGE, YESHWANTHAPURA HOBLI, BENGALURU NORTH TALUK. THIS WRIT PETITION COMING ON FOR HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
8.
ORDERThe case of the petitioner is that earlier one Sri.R.Pillappa purchased the entire Jodi village of, Myadarahalli, Yeshwanthapura Hobli, from one Sri.S.R.Chakravarthi and others by virtue of a registered sale deed dated 14.08.1933. Thereafter, Sri.S.R.Chakravarthi sold the said land to Sri.Narasinga Rao Sirur by virtue of a registered sale deed dated 24.07.1941. He was conferred with khayam gutta, title deed and was entitled to all privileges of title deeds. The revenue entries were entered in his favour.
2. During his lifetime, he had executed a Will bequeathing all the properties in favour of his only daughter, Smt.Sharadha Bai Balse. She died on 30.10.1970 and after her death, her legal representatives have succeeded to her estate including the aforesaid lands.
3. In 1964-67, in view of the enactment of the Inams Abolition Act, some persons had filed an application 9 before the Special Deputy Commissioner for Inams Abolition, Bengaluru, for grant of certain lands of Myadarahalli. Smt.Sharadha Bai Balse had also filed an application for re-grant of the lands. Pursuant to the same, certain lands were granted in her favour and were rejected with regard to the other lands. Aggrieved by the rejection of her plea in respect of certain lands, she filed an appeal before the Karnataka Appellate Tribunal, Bengaluru in Appeal Nos.817-818/1974.
4. The appeals were allowed by the order dated 30.06.1996, by setting-aside the order of the Special Deputy Commissioner. The predecessor-in-title of the petitioner, Smt.Sharadha Bai Balse, filed an application before the competent authority seeking registration of the name of the occupant in respect of the land bearing Survey No.34, measuring an extent of 6 acres, 11 guntas.
5. Respondent no.3 filed an application before the second respondent – Land Tribunal, claiming occupancy 10 rights in respect of the land bearing survey No.33 measuring 2 acres, 12 guntas, in Survey No.34 measuring 1 acre, 12 guntas and in survey No.38 measuring an extent of 1 acre, 38 guntas, situated at Myadarahalli Village. The Tribunal issued notice to the petitioner’s predecessor-in-title. No notice was issued to the petitioner. Considering the landlord being absent, they were placed exparte and occupancy rights was granted in respect of the land bearing survey Nos.33, measuring an extent of 2 acres, 12 guntas including 16 guntas of kharab and Survey No.34, measuring 6 acres, 34 guntas including 23 guntas of kharab. Since no notice was issued to the petitioner, he was not aware that the occupancy rights were granted and continued to be in possession and enjoyment of the land in question. It is only recently when the petitioner filed a miscellaneous petition for restoration of the appeal, which was dismissed as having been abated in a collateral proceeding, the petitioner on verification, came to know about the order of the Tribunal. Immediately on coming to 11 know of the same, the present petition is filed seeking to question the order of the land Tribunal.
6. The learned counsel for the petitioner contends that the order of the Land Tribunal has been obtained behind his back. That even though the petitioner was the lawful owner in possession of the property, no notice was issued to him. Therefore, the order of the Land Tribunal requires to be set-aside on that ground itself. Furthermore, the application of the third respondent was only to an extent of 1 acre, 12 guntas in Survey No.34. However, what has been granted to the third respondent is 6 acres, 11 guntas. Such a grant is opposed to law and facts. That the Land Tribunal has no jurisdiction to grant land of a greater extent, than what had been applied for.
7. So far as the delay in filing the writ petition is concerned, it is contended that the petitioner was not aware of the proceedings before the Land Tribunal. It is only when he was prosecuting the miscellaneous petition, 12 which was dismissed as abated, he came to know of the order of the Land Tribunal. Immediately, thereafter the instant petition is filed. Hence, the delay is bonafide.
8. The matter was heard on a number of dates. The statement of objections was also filed. Much thereafter, by an order dated 25.07.2013, it was ordered as follows: “As per the request of the counsel for respondent no.3, two more weeks are granted to file an Affidavit. Meanwhile, prima facie there appears to be over writing and tampering of Form No.7 file. This shall be inquired by the CID Officials and report be submitted regarding involvement of persons in tampering the records. A comprehensive report be submitted in this regard by two weeks. The records be kept in the safe custody of the Court. Status-quo be maintained as on today by both the parties. Copy of this order be made available to the Government Advocate immediately.” 13 9. In the interregnum, an application was filed seeking to implead themselves as respondent nos.4 to 22, on the ground that they were purchasers of the land granted to the respondent no.3 by the Land Tribunal. That they have purchased different portions of the said land and hence require to be heard before any final order is passed.
10. Based on the aforesaid order, the Central Investigation Department (for short ‘CID’) filed a report. Thereafter, by the order dated 07.02.2014, it was ordered as follows: “Learned counsel for the petitioner submits on instructions from his client that the petitioner may not have any counter to be filed to the Enquiry Report of the CID produced in this case by the Government Advocate. Similarly, counsel appearing for respondent No.3 submits he has no objection. Learned counsel who has filed the application to implead additional respondents in this 14 petition submits that they be heard in the matter on merits but, he also has no objection to the CID report. He submits his application may be heard and disposed of. As could be seen, though initially in this writ action, the grievance of the petitioner regarding grant of occupancy rights in favour of respondent No.3 viz., Pillappa was brought in question during the course of proceedings, it transpires that the 3rd respondent has transferred the subject matter of the proceedings in the writ action in favour of certain individuals, driving the benefit under the order impugned passed by the tribunal. Respondent No.3 died, survived by his legal heirs and thus the proceedings have continued. In the meanwhile, an issue arose about tampering of the Land Tribunal records consequent to which, it appears this Court directed an enquiry. The Government claims to have conducted enquiry through CID and a report in this regard has been filed, to which I have already adverted to supra. 15 In the circumstances, the application filed by certain persons to be impleaded in this petition on the ground that they have acquired right, title and interest in the property in the manner known to law and if any order will be to their prejudice, we have to consider their locus. Learned counsel for the petitioner submits he may not have any objection to implead them. In the circumstances, I.A.No.1/2013 filed by Sri B.V.Shankara Narayana Rao, learned counsel is allowed. The persons named in the application are brought on record as additional respondents. The petition to be amended. Amended petition to be filed. Two weeks time is granted to the impleading respondents to file their counter, if any, to the CID report.” 16 11. The application was allowed. Respondent nos.4 to 22 were permitted to come on record. By the very same order, it was observed that the petitioner has no counter to the enquiry report filed by the CID. Similarly, the counsel for the respondent no.3 has no objection for the CID report as well as the counsel for the impleaded respondents submitted that they have no objections to the CID report. Thereafter, the matter was taken up for hearing. 12(a). The primary contention of the third respondent is based on delay. He contends that there is substantial delay in filing the writ petition. That the impugned order of the Land Tribunal is passed in the year 1979, whereas the writ petition is filed in the year 2008. The explanation offered by the petitioner for the delay caused in filing the writ petition, cannot be accepted. He relies on the judgment in the case of SHANKAR CO- OPERATIVE HOUSING SOCIETY LIMITED, VS. M. PRABHAKAR AND OTHERS reported in (2011) 5 SCC60717 with reference to para-46, 54, 65 and 66 to contend that delay and latches has to be considered in the background of the rights that have accrued to others. That no hard and fast rule can be laid down with regard to the condonation of delay. The delay should not be condoned unless there is a reasonable explanation for the same. That the Courts should not harm the innocent parties if their rights had emerged from delay by the petitioner. (b). So far as the question of delay is concerned, the petitioner has explained the same at para–10 of the writ petition. He has narrated that it is only when he filed the miscellaneous petition for restoration of the appeal before the Karnataka Appellate Tribunal (KAT), which was dismissed as having abated, it is only then that the petitioner made an enquiry and came to know of the impugned order. (c). The predecessor-in-title of the petitioner was arrayed as the landlord. The petitioner was not arrayed as 18 the landlord before the Tribunal. Even though the petitioner was the lawful owner of the land in question, since no notice was issued to him, he was not aware of the proceedings. The proceedings were held behind his back. Therefore, there was no reason at all for him to be aware of the proceedings against him. When the entire proceedings are conducted in the absence of the original owner, the original owner cannot be held guilty of delay and latches. (d). The reasonings assigned by the petitioner is that only in the collateral proceedings did he came to know of the impugned order being passed. That he continues to remain in possession of the land in question. Considering the reasons, I’am of the considered view that the petitioner has shown good and sufficient cause in explaining the delay in filing the writ petition. The circumstances narrated by the petitioner are bonafide and require to be accepted. Therefore, the petition cannot be rejected purely on the ground of delay. 19 (e). The judgment relied upon by the respondents would narrate as to how an issue of delay should be considered by the Court. There is absolutely no dispute with the principles as stated in the aforesaid judgment. The judgment would explain that the delay has to be considered by considering the reasons for the delay, the events that have occurred subsequent to the delay, the third party interest, the right that has occurred to the respondents by virtue of the delay and all such factors. However, based on the facts involved in the present case I’am of the view that the judgment would not come to the aid of the respondents. The CID report would indicate that there has been a tampering of the records. When the records have been tampered, the same indicates a fraud committed by the third respondent. He has altered the records to suit his convenience. He has obtained an illegal gain by tampering the records. As has been held that “fraud unravels everything”, the delay cannot be a ground to defeat fraud. Therefore, the principles to be considered 20 while dealing with delay, would stand diluted in the face of fraud. Therefore, when fraud is detected, the same cannot be saved by considering delay. Whatever may be the delay, the same would be over come by the fraud that has been committed. Hence, I have no hesitation to hold, that in the background of the fraud being detected, delay becomes inconsequential. (f). The Hon’ble Supreme Court have time and again held that while considering delay, the latches on the part of the petitioner would have to be considered. Whether the petitioner deliberately caused the delay or not. In the instant case, no latches can be attributed to the petitioner. The petitioner was not aware of the proceedings. The proceedings were conducted behind his back. Even though he was the lawful owner of the property, he was not arrayed as a respondent before the Tribunal. Therefore, it cannot be said that there are latches on the part of the petitioner. There is no deliberate inaction on his part. He has not contributed to the delay. 21 He has no role in the delay. In the absence of showing any latches on the part of the petitioner, the delay would necessarily have to be condoned based on the sufficient cause shown by the petitioner. (g). The statement of objections as filed by the respondents / tenants clearly admits to the ownership and possession of the petitioner. Even though the tenants were aware of the ownership of the petitioner, they have deliberately chosen not to make him a party before the Land Tribunal. Hence, this action of the respondents- tenants themselves would clearly show that there was a deliberate attempt by them to avoid the petitioner from contesting the matter before the Tribunal. Therefore, it cannot be said that the petitioner is guilty of any latches. 13.(a) It is the further contention of the respondents’ that the question of fraud cannot be considered by this Court in the absence of pleadings. That whenever fraud is alleged, that fraud has to be specifically 22 pleaded and proved. In the absence of pleadings, fraud cannot be entertained. (b). The contention of the respondents requires to be accepted only in principle. There is no dispute with regard to the same. However, the said principle would not be applicable to the facts of this case. As narrated herein above, the petitioner came to this Court challenging the order of the Land Tribunal. Various grounds were urged in support of the writ petition on merits. During the pendency of the proceedings, a CID enquiry was ordered at the behest of the Court. It was on the directions of the Court, that an investigation was conducted and a report was filed. Fraud has been unraveled by the action of this Court. Fraud has come to light because of the intervention of this Court. Therefore, the plea that there is an absence of pleadings cannot be accepted. In the facts of this case, when fraud has been detected by the Court, the question of disregarding the issue of fraud, on the ground of absence of pleadings, would not arise for consideration. 23 14(a). I have considered in depth the CID enquiry report. Some of the extracts are as follows: “xxx During the course of enquiry officer collected the documents which were in the custody of the Hon’ble High Court. On verification of the documents it is seen that the extent of land mentioned in the form No.7 which was filed before the tribunal claiming for the regularization of occupancy rights was tampered in regard to the extent of land that 1 acre, 20 guntas as 6 acres, 34 guntas. It is to submit that the applicant Sri.Pillappa had filed the form No.7 application claiming his tenancy right over 1 acre, 20 guntas, in survey No.34 of Medarahalli, Yeshwanthapura Hobli. It is pertinent to note that the Land Tribunal had issued notices to the parties mentioning the extent of land as 1 acre, 20 guntas for Survey No.34, also the same is apparent in the order sheet of the Tribunal. The subject column regarding the occupancy rights in respect of Survey No.34 is noted in the order sheet as 1 24 acre, 20 guntas of Medarahalli Yeshwanthapura Hobli, Bangalore North Taluk. On perusal of the Land Tribunal order dated 02.08.1977 in LRF :
3360. 77-78 it has not mentioned a word regarding the correction made in the Form No.7. However, the Tribunal choose to pass an order granting occupancy rights for entire 6 acres, 34 guntas in Survey No.34 including Kharab land of 0.23 guntas. xxx It is submitted that there is a overwriting in form No.7 regarding the, extent of land pertaining to Survey No.34 Enquiry reveals that it may have been done between the period after filing the Form No.7 and before the order was passed by the Land Tribunal in LRF No.3360/77-78, xxx. xxx Further as far as form No.7 is concerned, prima-facie it reveals that the extent of land pertaining to Survey No.34 as well as the total extent of land claimed for regularization were tampered.” 25 (b). The enquiry report therefore clearly indicts the respondents-tenants. That they indulged in tampering of records. That 1 acre, 20 guntas was tampered as 6 acres, 11 guntas. (c). In the statement of objections filed by the respondents–tenants, various facts have been stated that support fraud. The tenants clearly admit the ownership of Smt.Sharadha Bai Balse, over the lands in question. In paragraphs 4 and 5 of the statement of objections, it is narrated as follows: “4. However, it is to be noticed by this Hon’ble Court that way back in the year 22.01.1974, the Special Deputy Commissioner for Inams Abolition had regranted the present subject lands, i.e., Survey No.33 and 34 of Medarahalli Village, Yeshwanthpura Hobli, Bangalore North Taluk, in favour of Smt.Sharada Bhai Bhalse in Case No.INA.CR.25/58-59. 26 5. As such, right from the year 1974, i.e., 22.01.1974, Smt.Sharada Bai Balse took over the possession of Survey No.33 and 34 of Medarahalli Village, as its absolute owner and as such, as regards Survey No.33 and 34, there was no cloud over the title therein. (d). It is reiterated again in para – II(d) and para- IV(b) as follows: “xxx II.(d) AS REGARDS PARA NO.5: d. It is submitted that from the perusal of the order passed in Annexure-A, filed by the Appellant, it is very apparent that even on 26.10.1964, the Special Deputy Commissioner for Inams Abolition Act had re-granted the Survey No.34 in favour of Smt. Sharada Bai Balse, in claim Application bearing No.INACR251958-59 therein.” “V. AS REGARDS PARA NO.7: a. b. xxx It is submitted that, as per contents of para No.7 the petitioner herein admits the fact that the subject matter property i.e., survey 27 No.34 situated at Jodi Medarahalli Village was initially a Jodi Inam Land. The respondent herein further admits the fact that later on upon applications filed by the predecessor of the petitioners, the same was re-granted in the name of Mrs.Sharada Bai Balse.” (e). In view of the categorical statements of fact made by the third respondent with regard to the ownership, title and possession of the land in question, not arraying the petitioner would be fatal to the case of the respondents. Admittedly, the petitioner is the true and lawful owner of the land in question. Therefore, when the third respondent has admitted to the petitioner’s title, possession and extent of the land, not arraying him as a landlord becomes fatal. (f). It is stated in para – 6 of the statement of objections by the respondents-tenant as follows: “6. It is submitted that, as a matter of fact, the parties before the Land Tribunal was Sri.N.S. Sirur, Dr.B.R.Bhalse, i.e., the power 28 of attorney holder and the Managing Functionary of Smt. Sharada Bai Bhalse and against one Sri.Venkataramaiah. As such there was no impediment for the predecessors of the Petitioner to appear before the Land Tribunal and make a statement to that effect.” (g). However, the specific case of the petitioner as narrated in para-4 of the writ petition is that Smt.Sharadha Bai Balse died on 30.10.1970 and after her death, her legal representatives have succeeded to her estate. The person arrayed as the respondent before the Land Tribunal is Dr.B.R.Bhalse. But even according to the respondents–tenant, as per the statement of objections. Dr.B.R. Bhalse was the power of attorney holder of Smt.Sharadha Bai Balse. Since Smt.Sharadha Bai Balse died on 30.10.1970, the power of attorney would cease to exist from that date. The application for grant of occupancy rights was made somewhere in the year 1977- 78. The impugned order of the Land Tribunal is dated 02.08.1979. Therefore, even as on the date of the filing of 29 the application, Smt.Sharadha Bai Balse had died and therefore the power of attorney holder could not have been made as a party. 15(a). After filing of the report by the CID, no objections were filed by the respondents – tenants or by the impleaded respondents. Therefore, the report is presumed to have been accepted. Even then, contentions were advanced by the respondents, which I have considered. (b). So far as tampering is concerned, various inconsistent contentions and pleadings are advanced by the respondent – tenants. In the first instance, it is contended that there was a mistake in the proceedings before the Tribunal and therefore the respondent himself has corrected the same. (c). Secondly, it is stated by the respondents – tenant in their statement of objections at para – V(b) as follows:
30. “b. It is submitted that, the claim of the respondent herein pertaining to survey No.34 was to an extent of 6 acres, 34 guntas and not 1 acre 20 guntas. Unfortunately the clerk while recording the same has made arithmetical error which thereafter during the course of proceedings was appraised to the authority and they have corrected the same.” (d). This statement of fact made by the respondents is in consonance with the CID report. The CID report indicates that tampering has taken place after the filing of the Form No.7. Therefore, based on the admission of the respondents themselves, they are guilty of tampering the records and committing fraud. (e). The second contention is that it was the Tribunal which has corrected the error. Assuming that such a contention could be accepted, the Tribunal would have very well passed an order to the said effect by correcting the said extent from 1 acre, 20 guntas to 6 acres, 34 guntas. No such order has been made, since I have 31 examined the entire records. Therefore, the plea of the respondents cannot be accepted. (f). Furthermore, the correction is from 1 acre, 20 guntas to 6 acres, 34 guntas. Even if there is an error, the error should be proximate to 6 acres, 34 guntas. The error cannot be 6 acres, 34 guntas vis-à-vis, 1 acre, 20 guntas. It defeats common sense. (g). The order sheet of the Tribunal would clearly disclose that notice of Form No.7 was issued to the landlord, in respect of survey No.34 to the extent of 1 acre 20 guntas. Therefore, the proceedings commenced on issuance of notice for 1 acre, 20 guntas. The CID report would indicate that the records were tampered after Form No.7 was filed. Therefore, the plea of the respondents cannot be accepted. The pleadings of the respondents are inconsistent, contrary, desperate and not bonafide. None of them could be accepted. 32 16. The tampering of the records and the fraud committed by the third respondent is manifest. Fraud has resulted in gross miscarriage of justice. Fraud has been committed to obtain as illegal gain for himself. Fraud has been committed to deprive the legitimate right of the petitioner. Hence, on the ground of fraud itself, the order of the Land Tribunal is liable to be quashed. 17(a). As an after-taught, it is contended by the learned counsel for the respondents-tenants that the claim being for 1 acre, 20 guntas, the occupancy may be confirmed atleast to the said extent. (b). The original application was for an extent of 1 acre, 20 guntas. The respondent has committed a fraud in tampering the records and making it 6 acres, 34 guntas . Therefore he has committed a fraud. The fraud has been detected by this Court. ‘Fraud unravels everything’. When fraud unravels everything, it includes 1 acre, 20 guntas. It cannot be dissected from 6 acres, 34 guntas. Fraud cannot 33 be dissected into a pre and post-fraud situation. A fraud is a fraud. A fraudulent person would not be entitled to the protection of law, since law aids those who come to it with clean hands and not those who tamper records by committing fraud. Therefore, the entire order of the Land Tribunal requires to be set-aside. 18(a). The contention of the impleaded respondents is that they are bonafide purchasers and they were not aware of the fraud that has been committed. That they have purchased the properties from the third respondent. That their transaction should be protected. Along with the application for impleading, they have produced their respective sale deeds and other documents in support of their plea, that they have purchased the properties from the third respondent. (b). It is not that the bonafide purchasers’ interest alone that should be taken into account. On the other hand what the Court would have to consider is the plight of the 34 petitioner. The position of the petitioner would have to be weighed, while considering the plea of the bonafide purchasers. Therefore, on the one hand it is the claim of the bonafide purchasers and on the other hand is the claim of the petitioner, that he is the loser of the land due to malafides and fraud. If the case of the bonafide purchasers alone is to be considered, then it would amount to a one- sided justice. However, in the instant case, the bonafide purchasers are the purchasers of the lands which have been obtained by fraud. Therefore, when the vendor has received the property as a result of fraud, necessarily the alienation made by him would be bad. Therefore, merely holding in favour of the purchasers as bonafide purchasers, would cause miscarriage of justice. (c). The land owner is a victim of fraud by the third respondent. He has been cheated. When a court of law declares fraud, necessary consequences should flow. If the person who has been frauded is ignored, then justice has 35 failed him. The duty of the Court is to do justice. It is a quest for truth. Having arrived at the truth and not giving any relief to the innocent person would not be rendering justice, under any circumstance whatsoever. 19.(a) I have considered the sale deeds. In fact, some of the sale deeds produced, have been executed as late as in the year 2012, while the writ petition was filed in the year 2008. Therefore, all the sale deeds which have been executed subsequent to the filing of the writ petition would be hit by the principles of lis pendens and therefore such sale deeds cannot be protected. They are set-aside. (b). I have considered the other sale deeds also. Here too, is an element of fraud and suppression. With regard to the source of the title of the vendor, namely the third respondent, the only reference is that the property has been acquired by the orders of the Special Tahsildar dated 30.08.1980. All the sale deeds narrate this as the source of title. The said order of the Special Tahsildar is 36 not forthcoming from the records. No material is produced to substantiate the said order of the Tahsildar. The title of the third respondent can be derived only from the order of the Land Tribunal. That the third respondent received the property in terms of the order of the Land Tribunal is totally absent in the sale deed. Therefore, when the source of the title itself is not identifiable, necessarily, the purchasers would have to bear the risk of purchasing a property where title is doubtful and not traceable. Therefore, the sale-deeds would indicate that the vendor, namely the third respondent, has suppressed the grant of land by the Tribunal. Therefore, this is yet again, another attempt at misleading. Since the order of the Special Tahsildar which is relied upon as a source of title has not been established and there is suppression of the order of the Land Tribunal, the subsequent purchasers have knowingly taken a risk. (c). It was the duty of the purchasers to have verified the source of the title. However, the sale deeds 37 would indicate that the sale has been effected based on the order of the Tahsildar. Therefore, when there is no bonafide attempt by the purchasers to verify the title deed to the property they are purchasing, they cannot be said to be bonafide purchasers. Therefore, their plea of being bonafide purchasers cannot be accepted. They are not bonafide purchasers. (d). In the statement of objections filed by the third respondent, there is no reference that any of the properties have been sold to the impleaded respondents or others. There is not even an indication that some properties have been sold. Even though some properties have been sold much after filing of the writ petition, various properties have been sold prior to that. Therefore, it is a case of continuing suppression by the third respondent. He should have come to the Court with clean hands. He should have narrated that properties have been 38 sold. He has deliberately suppressed these important facts from the Court. 20(a). It is further contended by the subsequent purchasers that fraud cannot be held against the subsequent purchasers by relying on the judgment of the Bombay High Court in the case of TAPARIA OVERSEAS PRIVATE LIMITED AND ANOTHER VS. UNION OF INDIA, reported in 2003(2) Mh.L.J.533. However, at para-36, it was held as follows: “No doubt true that as a general rule, if a transaction has been originally founded on fraud, the original vice will continue to taint it, and not only is the person who has committed fraud is precluded from deriving any benefit under it, but an innocent person is so likewise, unless there has been some consideration moving from himself.” Therefore, the judgment would clearly indicate that not only the persons committing fraud, but an innocent person is also liable for it. This is the judgment that the 39 respondents themselves rely upon. The principle enunciated therein runs strongly against them. (b). When fraud vitiates everything, it engulfs all subsequent acts. The subsequent acts cannot be isolated on the ground of being a bonafide purchaser. If such an argument is to be accepted, then there would be a premium on fraud. It would amount to holding that even when fraud is proved, the subsequent purchaser would be saved by overlooking fraud. I’am unable to accept such a reasoning. When fraud unravels everything, the same has to be understood in its letter and spirit. “Unravels everything” includes, unraveling of subsequent acts relatable to fraud. If persons have received benefits subsequent to and as a result of fraud, that benefit too, is covered by fraud. It is by virtue of fraud that he has received the property. Therefore, such a fraud cannot be perpetuated and ratified. Therefore, all the sale deeds deserve to be set-aside. 40 21(a). The petitioners counsel relies on the judgment of the Hon’ble Supreme Court in the case of DEVENDRA KUMAR VS. STATE OF UTTARANCHAL AND OTHERS reported in (2013) 9 SCC363 wherein at para 13 and 14, it was held as follows: “13. xxxx Fraud avoids all judicial acts, ecclesiastical or temporal.” (Vide S.P.Chengalvaraya Naidu v. Jagannath). In Lazarus Estates Ltd. v Beasley the Court observed without equivocation that: (QB p.712) “… No Judgment of a court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for fraud unravels everything.” 14. In A.P. State Financial Corpn. v. GAR Re- Rolling Mills and State of Maharashtra v. Prabhu this Court has observed that a writ court, while exercising its equitable jurisdiction, should not act to prevent perpetration of a legal fraud as courts are obliged to do justice by promotion of good faith. “Equity is, also, known to prevent the 41 law from the crafty evasions and subtleties invented to evade law.” (b). Reliance is also placed on the judgment of the Hon’ble Supreme Court in the case of BADAMI (DECEASED) BY HER LR VS. BHALI, reported in (2012) 11 SCC574 at para nos.29, 30 and 38, extracted below: “29. Presently, we shall refer as to how this Court has dealt with concept of fraud. In S.B.Noronah v. Prem Kumari Khanna while dealing with the concept of estoppel and fraud a two-Judge Bench has stated that: (SCC p.58, para
20) “20. It is an old maxim that estoppels are odious, although considerable inroad into this maxim has been made by modern law. Even so, ‘a judgment obtained by fraud or collusion, even, it seems a judgment of the House of Lords, may be treated as a nullity’, (See Halsbury’s Laws of England, Vol.16, 4th Edn., para 42 1553.) The point is that the sanction granted under Section 21, if it has been procured by fraud or collusion, cannot withstand invalidity because, otherwise, high public policy will be given as hostage to successful collusion.” 30. In S.P.Chengalvaraya Naidu v. Jagannath this Court commenced the verdict with the following words: (SCC p.2 para
1) “1. ‘Fraud avoids all judicial acts, ecclesiastical or temporal’ observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eye of the law. Such a judgment/decree-by the first court or by the highest court-has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.” In the said case it was clearly stated that the courts of law are meant for imparting justice 43 between the parties and one who comes to the court, must come with clean hands.
38. All these reasonings are absolutely non- plausible and common sense does not even remotely give consent to them. It is fraudulent all the way. The whole thing was buttressed on the edifice of fraud and it needs no special emphasis to state that what is pyramided on fraud is bound to decay. In this regard we may profitably quote a statement by a great thinker: “Fraud generally lights a candle for justice to get a look at it; and rogue’s pen indicts the warrant for his own arrest.” (c). The learned counsel appearing for the impleaded respondents places reliance on the judgment of the Hon’ble Supreme Court in the case of ESHA BHATTACHARJEE VS. MANAGING COMMITTEE OF RAGHUNATHPUR NAFAR ACADEMY AND OTHERS, reported in (2013) 12 SCC649 which reiterates the principles applicable to an application for condonation of delay. There 44 can be no dispute with regard to the same. However, what has missed the attention of the learned counsel is one of the principles as enunciated by the Hon’ble Supreme Court in the said judgment on fraud, wherein it was held as follows: “21.11.(xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.” Therefore, the said judgment does not aid the respondents, but would rather, strongly, come to the aid of the petitioner. 22(a). The view expressed by this Court is fortified by the judgment of the Hon’ble Supreme Court in the case of HAMZA HAJI VS. STATE OF KERALA AND ANOTHER, reported in (2006) 7 SCC416 wherein it was held at para – 20 and 21 as follows: “20 It is not necessary to multiply authorities on this question since the matter has come up 45 for consideration before this Court on earlier occasions. In S.P. Chengalavaraya Naidu v. Jagannath this Court stated that: (SCC p.2, para
1) “It is the settled proposition of law that a judgement or decree obtained by playing fraud on the court is an nullity and non est in the eye of the law. Such a judgment/decree- by the first court or by the highest court- has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.” The Court went on to observe that the High Court in that case was totally in error when it stated that there was no legal duty cast upon the plaintiff to come to the court with a true case and prove it by true evidence. Their Lordships stated: (SCC p.5, para 5). “ The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. 46 Property-grabbers, tax-evaders, bank loan- dodgers and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, whose case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.” (b). Having considered the facts and basing it on the principle that “fraud unravels everything’, all subsequent actions to fraud would also have to be set-aside. This is exactly what the Hon’ble Supreme Court held in the case of KRISHNA YADAV AND ANOTHER VS. STATE OF HARYANA AND OTHERS, reported in para (1994) 4 SCC165 at para 20, which reads as follows: “20. In the above circumstances, what are we to do?. The only proper course open to us is to set aside the entire selection. The plea was made that innocent candidates should not be penalised for the misdeeds of others. We are unable to accept this argument. When the 47 entire selection is stinking, conceived in fraud and delivered in deceit, individual innocence has no place as “fraud unravels everything”. To put it in order words, the entire selection is arbitrary. It is that which is faulted and not the individual candidates. Accordingly we hereby set aside the selection of Taxation Inspectors.” (c). Yet again the Hon’ble Supreme Court in the case of UDDAR GAGAN PROPERTIES LIMITED VS. SANT SINGH AND OTHERS, reported in (2016) 11 SCC378while considering the issue with regard to fraud and the consequential orders, one of the questions that arose for consideration of the Hon’ble Supreme Court was narrated in para Nos.3(iv) and (vii), which reads as follows: “3. It was on these undisputed facts that the High Court was called upon to examine the question on a group of petitions by the landowners which are framed in the impugned judgement as follows: (Sant Singh case, SCC online P & H para
55) (i) (ii) (iii) (iv) (v) (vi) (vii) 48 Xxxxx Xxxxx xxxxx Whether a writ court in exercise of its powers under Article 226 of the Constitution is competent to annual a sale transaction executed in violation of and on playing a fraud on the statute?. Xxxxx Xxxxx Whether writ petitions suffer from inordinate delay and laches?.” In the aforesaid judgment, since fraud was detected, delay was held to be inconsequential and the petitions were entertained on merits. As a consequence to the fraud being unearthed, all subsequent alienations which were set-aside by the learned Single Judge of the High Court, was affirmed by the Hon’ble Supreme Court. In view of the clear law laid down by the Hon'ble Supreme Court in the 49 aforesaid judgments on the consequence of fraud, all subsequent alienations require to be set-aside.
23. When the entire case of the respondents is based on fraud, the question of considering the petition on merits would not arise for consideration. Since fraud has been proved and established, the entire order of the Land Tribunal become unsustainable. Therefore, there is no necessity to go into the merits of the petition. The impugned order of the Land Tribunal would have to be set- aside solely on the ground of fraud.
24. For the aforesaid reasons, the petition is allowed. The impugned order dated 02.08.1979, in LRF No.3360/77-78, vide Annexure-K, passed by the second respondent is set-aside. All the sale deeds alienations subsequent to the impugned order of the Land Tribunal, are declared as null and void and are set-aside. 50 Registry is directed to keep the records into safe custody. Rule made absolute. SD/- JUDGE JJ