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CASE NO.: Appeal (civil)  1727 of 2008

PETITIONER: Ganpatbhai Mahijibhai Solanki

RESPONDENT: State of Gujarat & Ors

DATE OF JUDGMENT: 04/03/2008

BENCH: S.B. Sinha & V.S. Sirpurkar

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.       1727 OF 2008 [Arising out of SLP (C) No. 3198 OF 2007]

S.B. SINHA, J.

       Leave granted.          

1.      Whether suppression of a material fact would entail allowing of an  application for condonation of 2205 days delay in filing a review application  is the core question involved herein.    

2.      Appellants were owners of various tracts of lands situated in the town  of Vadodara.   10,807 sq. meters of land in survey Nos. 345, 347/1 and 267  in Mazalapur were declared as surplus land under the provisions of the  Urban Land Ceiling Act, 1976 (for short "the Act") by the competent  authority.   An appeal preferred thereagainst was dismissed by an Order  dated 4.1.1988 by the appellate authority, stating; "As discussed above, no contention of the  appellant is acceptable and there is no reason to  interfere with the impugned order passed by the  Competent Authority and therefore the following  order is passed.

The appeal of the appellant is dismissed.   The  impugned order dated 12/07/1984 passed by the  competent authority is confirmed.

The injunction orders passed by this office is  vacated.

The order be informed to the parties."

3.      All contentions raised by the appellants were considered therein.   It  was allowed to attain finality.    

4.      Notification under Section 10(3) of the Act was published in the  Official Gazette on 4.5.1989.   A notification was also issued under Section  10(5) thereof on 23.8.1989.   

Allegedly, the directions contained therein were not complied by the  appellant.   Possession of the properties were said to have been taken over on

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20.4.1992.   Surplus lands are said to have been allotted to members of the  weaker sections as envisaged under Section 23 of the Act.     Another round  of litigation was initiated by the appellant.   Another appeal was said to have  been filed before the appellate authority in terms of Section 33 of the Act in  the year 1995.   The said appeal was entertained.   By a judgment and order  dated 30.3.1995,   6224 sq. meters in Survey No. 267 only was declared as  surplus land.    

5.      Respondent-State alleged that the Tribunal was not informed about  the result of the earlier appeal and the said order dated 30.3.1995 was passed  ex-parte.   Even the allottees were not given any notice.  A Writ Petition was  preferred by one of the allottees before the High Court wherein a direction  was issued to allot him an alternate land.  The State also filed a writ petition  thereagainst which was marked as SCA No. 100 of 1996.   Appellant  is   said  to  have filed two civil suits in the years 1999 and 2001 in the Court of  Civil Judge, Senior Division, Vadodara being Civil Suit No. 935 of 1999  and 190 of 2001 seeking injunction against the State from taking possession  of the lands.  The application for interim injunction was, however,  dismissed.  In the said interim order, allegedly a finding was recorded that  the appellant had suppressed material facts and misled the Court.

6.      However, in the year 1999, the Act was repealed.  On the basis thereof  purported statement was made by the Assistant Government Pleader in  Special Civil Application  No. 100 of 1996 withdrawing  the said SCA No.  100 of 1996.   The High Court in its Order dated 15.6.1999 recorded;  "Mr. Dave, Ld. Counsel for the petitioner states that  in view of the Urban Land (Ceiling & Regulation)  Repeal Act, 1999, the present petition does not  survive.   Consequently the same is disposed off  accordingly.   Rule discharged with no order as to  costs.  Ad-interim relief vacated."

       Thereafter notices were issued to the allottees for their eviction.    Several correspondences passed between the appellant and the Authorities of  the State.  Allegedly the Order of the High Court dated 23.3.2000 was  accepted by the State.  A stand was taken that the said order of the High  Court dated 15.6.1999 would not be challenged.    

7.      Appellant sold the land to one Dineshbai Chhotabhai Patel by a  registered deed of sale dated 20.5.2000.   The said vendee again sold half of  the said land in favour of one Sanjay Kumar Manilal Patel on 25.1.2001.   Permission was granted for construction of the buildings.    

8.      The allottees, filed a writ petition before the High Court.  The State  therein filed a counter affidavit accepting the order of the Tribunal dated  31.3.1995.  However, after a few days, an application for recalling of the  said order dated 15.6.1999 was filed, whereupon a notice was issued.    

9.      By reason of a judgment dated 11.10.2005, a learned Single Judge of  the High Court allowed the said application assigning cogent reason. A  Letters Patent Appeal preferred thereagainst by the appellant has been  dismissed by a Division Bench of the High Court by reason of the impugned  judgment expressing its agreement with the order passed by the learned  Single Judge.

10.     Mr. Aniruddha P. Mayee, the learned counsel appearing on behalf of  the appellant urged that the High Court committed a serious error in passing  the impugned judgments, by reason whereof not only 2205 days delay has  been condoned, but a litigation is sought to be revived which would end in  futility having regard to the conduct of the State and the subsequent events  which took after 15.6.1999.

11.     Ms. Madhvi Divan, learned counsel appearing on behalf of the  respondent on the other hand, urged that the appellant had committed a fraud

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on the Court as it had suppressed the appellate order dated 4.1.1988 while  preferring another appeal after 11 years of the passing of the original order  dated 12.7.1984.    

At no stage, the learned counsel would submit, the appellant had  brought to the notice of the authorities of the State as also the High Court  that the Order dated 12.7.1984 had attained finality.   It was, furthermore,  contended that the stand taken by the Assistant Government Pleader was not  binding upon the State as those cases where possession had also been taken  over from the owner of the land have explicitly been saved under the  provisions of the 1999 Act.   

12.     Steps indisputably had been taken under the provisions of the Act,  pursuant to the final order passed in the said proceeding as not only some  lands were declared to be surplus, an appeal preferred thereagainst was  dismissed, possession had been taken over and even allotments have been  made in favour of the members of the weaker sections of the Society.

       We may notice that even possession  of portions of lands were handed  over to 15 persons.    

If the State is correct in its submission that in that view of the matter,  the 1999 Act will have no application, indisputably, any wrong concession  made by a counsel would not be binding upon the State.    

       In State of Haryana and Others Vs. M.P. Mohla [(2007) 1 SCC 457],  it was held; "25. The law as regards the effect of an admission is  also no longer res integra.   Whereas a party may not be  permitted to resile from his admission at a subsequent  stage of the same proceedings, it is also trite that an  admission made contrary to law shall not be binding on  the State."

13.     We are not oblivious of the fact that the authorities of the State have  made a complete goof up with the situation.  By its action, it allowed  subsequent events to happen, viz. sales of the lands have taken up,  constructions have come up, but the question which arises for our  consideration is as to whether even in such a situation, this Court would  allow a suppression of fact to prevail.    

It is now a well settled principle that fraud vitiates all solemn acts.   If  an order is obtained by reason of commission of fraud, even the principles of  natural justice are not required to be complied with for setting aside the  same.    

       In T. Vijendradas and Another Vs. M. Subramanian & Others [2007  (12) SCALE 1], this Court held; "21. \005\005 When a fraud is practiced on a court, the  same is rendered a nullity.   In a case of nullity, even  the principles of natural justice are not required to be  complied with.   [Kendriya Vidyalaya Sangathan and  Others v. Ajay Kumar Das and Others  (2002) 4 SCC  503 & A. Umarani v. Registrar, Cooperative societies  and Others (2004) 7 SCC 112-para 65]

22.  Once it is held that by reason of commission of a  fraud, a decree is rendered to be void rendering all  subsequent proceedings taken pursuant thereto also  nullity, in our opinion, it would be wholly inequitable  to confer a benefit on a party, who is a beneficiary  thereunder\005.."  

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14.     The object and purport of a statute must be given effect to.  If there is  a conflicting interest, the Court may adjust equities but under no  circumstance it should refuse to consider the merit of the matter, when its  attention is drawn that suppression of material facts has taken place or  commission of fraud on Court has been committed.   

The courts, for the aforementioned purpose may have to consider the  respective rights of the parties.  The State has a constitutional  duty/obligation to comply with the principle of social justice as adumberated  under Section 23 of the Act and take the decision to their logical conclusion.     

15.     The allottees have acquired a statutory right.  Only because the State  was not aware of the factual position and/or the legal implication of the 1999  Act which led to withdrawal of the writ petition from the High Court, the  same by itself may not be sufficient to deprive the allottees from their legal  right to hold the said land.   

16.     An extra-ordinary situation of this nature would require an extra- ordinary order.     

17.     In the matter of passing an order of condonation of delay, we may  notice that the Court of Appeal in Smith Vs. Kvaerner Cementation  Foundations Ltd (Bar Council intervening)  [2006 3 All ER 593] condoned  the delay on the ground that the appellant therein had a human right to get  his lis adjudicated before an independent and impartial tribunal and as the  Judge was biased,  delay in preferring the appeal was condoned stating; "41.   The first criterion to be considered, (a), is the  interests of the administration of justice.   These  would normally militate strongly against an extension  of time as long as that sought in this case.   It is an  important principle of the administration of justice  that legal process should be finite.   To reopen this  case after a delay of four years plainly runs counter to  that principle.   But this is a case where Mr. Smith has  been denied the right to which art 6 of the European  Convention for the Protection of Human Rights and  Fundamental Freedoms 1950 (as set out in Sch 1 to  the Human Rights Act 1998) entitled him \026 to a fair  hearing before an independent and impartial tribunal.    This, in our view, is the paramount consideration so  far as the administration of justice is concerned."

18.     For the reasons, aforementioned,  we are of the opinion that the merit  of the matter as also the question in regard to adjustment of equities may be  considered by the High Court.  We, for the foregoing in exercise of our  jurisdiction in Article 136 of the Constitution of  India refuse to interfere with  the impugned judgment.  

 The  appeal  is  dismissed  with  costs.  Counsel’s fee assessed at     Rs. 10,000/-