Reportable

IN THE SUPREME COURT OF  INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal Nos. 6656-6657     of 2010 (Arising out of SLP (C) Nos. 14447-14448 of 2007)

Meghmala & Ors.         ..Appellants  

Versus

G. Narasimha Reddy & Ors.                 ..Respondents

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. Leave granted.  

2. Judicial  pronouncements  unlike  sand  dunes  are  known  for  their  

stability/finality.  However, in this case, in spite of the completion of several  

rounds of litigation upto the High Court, and one round of litigation before  

this Court, the respondents claim a right to abuse the process of the Court  

with the perception that whatever may be the orders of the High Court or  

this  Court,  inter-se  parties  the  dispute  shall  be protracted  and will  never  

come to an end.

3. These appeals have been preferred against the Judgment and Order  

dated  26.04.2007  of  the  High  Court  of  Andhra  Pradesh,  at  Hyderabad,  

passed in Writ Petition Nos. 19962-19963 of 2006, by which the High Court  

has allowed the said petitions against the Judgment and order of the Special  

Court  under  the  Andhra  Pradesh  Land Grabbing  (Prohibition)  Act,  1982  

(hereinafter  called,  “Act  1982”),  dismissing  the  review  application  No.  

397/2005 in LGC No. 76/1996 and in LGCSR 357/2005.   

4. Facts and circumstances giving rise to the present cases are as under :-  

(A) V. Ram Chandra Reddy and his brother  (vendors)  had a huge chunk  

of land and a part of it could have been the subject matter  of  the provisions  

of Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter called the  

Act  1976).   The  said  vendors  entered  into  an  agreement  to  sell  dated  

23.01.1976 for selling a part of the land (hereinafter called ‘suit land’)  to a  

cooperative society namely, Gruha Lakshmi Cooperative Housing Society  

Ltd.  (hereinafter  called,  “the  Society”).   The  vendors,  V.  Ram  Chandra  

Reddy and his brother executed a sale deed in favour of A. Sambashiva Rao  

(hereinafter  called  the  appellant/applicant)  which  was  registered  on  

21.05.1980  vide  document  No.  4758/80  and  the  appellants  were  put  in  

possession of the suit land.    

2

(B) The appellant/applicant-  vendee filed LGC No. 76/1996 against the  

respondents under the provisions of the Act, 1982 alleging that he had been  

working  in  Andhra  Pradesh  State  Road  Transport  Corporation  and  was  

mostly out of station, and the respondents had forcibly grabbed his land and  

raised construction thereon.  Thus, he sought the relief of their dispossession  

and action against them under the provisions of the Act, 1982.   

(C) After complying with the requirements of the statutory provisions i.e.  

taking the sanction etc., the respondents were issued a show cause notice.  

The respondents filed their reply submitting that in respect of the suit land,  

there was an agreement to sell, dated 23.01.1976, in favour of the society  

and once such an agreement to sell had been executed, vendors had no right  

to transfer the land in favour of the appellant/applicant.   The society had  

allotted the suit land in their favour, therefore, the application was liable to  

be rejected.

(D) The Special Court after appreciating the evidence, vide Judgment and  

order dated 4.11.1997 came to the conclusion that the appellant/applicant  

was the owner of the suit land and that  the respondents had no right, title or  

claim over the suit land.  They had forcibly occupied the land and they were  

land grabbers, thus, they were liable to be evicted and orders for that purpose  

were passed.   

3

(E) Being aggrieved by the order of the Special Court dated 4.11.1997,  

the  respondents  preferred  writ  petition  No.  33572/1997  before  the  High  

Court of Andhra Pradesh, which was dismissed vide Judgment and Order  

dated 3.07.2001.   

(F) Being  aggrieved  by  the  order  of  the  High  Court,  the  respondents  

preferred  Special  Leave  Petition  (c)  No.  18218/2001  before  this  Court,  

which was dismissed as withdrawn vide order dated 2.11.2001 giving liberty  

to the respondents to file review petition before the High Court.   

(G) The respondents filed review petition No. 31506/2002 before the High  

Court.  However, the said review petition was dismissed by the High Court  

vide order dated 16.12.2002.   

(H) In  the  intervening  period,  when  the  review  petition  was  pending  

before the High Court, the appellant/applicant  filed execution proceedings  

by moving IA No. 518/2002. The Respondents also moved an application to  

summon  the  record  of  the  Revenue  Divisional  Officer,  Secundrabad,  

pertaining to the survey of the suit land along with an application for the stay  

of Execution proceedings.  The Special Court vide order dated 7.11.2002  

allowed  the  Execution  Application  filed  by  the  appellant/applicant  but  

dismissed  the  application  filed  by  respondents  directing  the  Revenue  

Divisional Officer to implement the order dated 4.11.1997.  

4

(I) The  respondents  being  aggrieved  by  the  common  order  dated  

7.11.2002, filed writ petition nos. 22953 and 23105 of 2002, which were,  

dismissed by the High Court vide order dated 17.12.2002.   

(J) In pursuance of the order in Execution Proceedings dated 7.11.2002,  

the appellants were put into  possession of the suit land on 16.12.2002.   

(K) The respondents being aggrieved by the order of the High Court dated  

17.12.2002, preferred review petitions before the High Court, which were  

dismissed by the Court vide order dated 17.11.2003.   

(L) The respondents filed  Review Application no. 397/2005 in LGC No.  

76 after an inordinate delay, seeking review of the order dated 4.11.1997.  

The respondents subsequently filed an application in LGCSR No. 357/2005  

before the Special Court for fresh declaration that they were the owners and  

that the appellants, who had succeeded throughout the litigation, were the  

land grabbers.  The respondents in the said application impleaded persons  

other  than  the  appellant/applicant  also,  i.e.  the  vendors  of  the  

appellant/applicant and govt. officials etc., who are the other appellants in  

these cases.  The Special Court dismissed the said applications vide orders  

dated 6.7.2006 and 11.7.2006.   

(M) The  respondents,  being  aggrieved  by  both  the  orders,  filed  Writ  

Petition Nos. 19962 and 19963 of 2006, which have been allowed by the  

5

High Court vide impugned Judgment and order dated 26.04.2007, directing  

the Special Court to decide both the applications afresh on merit, as in the  

opinion  of  the  High  Court,  the  applications  required  certain  inquiry  on  

factual matters and the claim of the respondents could not have been rejected  

merely  on  the  determination  and  attaining  finality  of  orders  in  earlier  

proceedings.  Hence, these appeals.   

5. Sh. P. Vishwanatha Shetty, learned senior counsel appearing for the  

appellants, has submitted that even if there was an agreement to sell by the  

vendor of the appellants in favour of the society, such an agreement did not  

confer any title in the suit land in their favour.  The respondents had not  

been the members of the said Society, nor had any allotment ever been made  

by the Society in their favour.  The earlier proceedings came to an end after  

having several rounds of litigation upto the High Court and one round upto  

this Court.  The orders passed therein attained finality and in pursuance of  

the  same,  the  appellant/applicant  came  into  possession  of  the  suit  land.  

Issues of fraud and identification of land had been in issue in some of the  

earlier proceedings.  Once the respondents had approached this  Court, the  

question of entertaining the review petition after an inordinate delay of 7-8  

years  does  not  arise.   The  respondents  have  no  locus  standi  to  ask  the  

Special  Court  to  determine   under  what  circumstances  the  

6

appellant/applicant  had obtained the suit  land.   An application to call  for  

certain records in respect  of the suit  land from 1972 to 2002, the survey  

reports etc. cannot be made by them.  The High Court has gravely erred in  

interfering  with  the  orders  of  the  Special  Court  rejecting  both  the  

applications.  Thus, the appeals deserve to be allowed.   

6. Per contra, Sh. M.V. Durga Prasad, learned counsel appearing for the  

respondents  submitted  that  the  transfer  of  land  in  favour  of  the  

appellant/applicant vide registered sale deed dated 21.05.1980 was itself a  

fraudulent transaction and material in this regard was suppressed from the  

Special  Court while obtaining the orders in their   favour.   Fraud vitiates  

everything.  The respondents have raised the issue of the identification of the  

suit land. Thus, the applications filed by the respondents were maintainable  

and the High Court has rightly reversed the orders passed by the Special  

Court.   The  appeals  lack  merit  and no interference  is  warranted  by  this  

Court.   

7. We  have  considered  the  rival  submissions  made  by  the  learned  

counsel for the parties and perused the record.   

Admittedly,  there  is  a  registered  sale  deed  in  favour  of  the  

appellant/applicant dated 21.05.1980 and there may be an agreement to sell  

in favour of the society dated 23.01.1976.  It is settled legal proposition that  

7

an  agreement  to  sell  does  not  create  any  right,  or  title  in  favour  of  the  

intending  buyer.   The  Society  did  not  file  suit  for  specific  performance  

against  the  vendors  prior  to  the  execution  of  sale  deed in  favour  of  the  

appellant/applicant on 21.05.1980.  The Special Court, after appreciating the  

entire  evidence  on  record,  came  to  the  conclusion  that  the  

appellant/applicant was the owner and was in actual physical possession of  

the land and that the respondents had grabbed the said land.  The Special  

Court has observed as under :-

“In the cross-examination,  RW1 (respondent  No.1  herein)  had to  admit  that  they  have not  filed  any   document to show that the said plot was allotted in   their favour by the society and that they have not   filed  any  document  to  show  that  they  are  the  members of the said society.  He also admitted that   without any municipal sanction or permission, they   raised the construction in the scheduled land.”        

The  Special  Court  further  held  that  the  respondents  were  land  

grabbers within the meaning of the Act, 1982 and thus, they were directed to  

restore the premises to the appellant/applicant.  These findings of fact had  

been affirmed upto the High Court.

8. The  record  of  the  case  reveals  that  respondents  have  filed  review  

petitions  before  the  Special  Court  as  well  as  before  the  High  Court.  

However, all the applications had been dismissed by the Courts concerned.  

8

The respondents again filed an application seeking review of the order dated  

4.11.1997.  Section 17-A of the Act, 1982 provides that in order to prevent  

the miscarriage of justice,  a review application can be entertained on the  

grounds that the order has been passed under a mistake of fact, ignorance of  

any material fact or an error apparent on the face of law.  Limitation for  

filing the review application before the Special Court has been prescribed  

under Rule 18 of the Andhra Pradesh Land Grabbing (Prohibition) Rules,  

1988, as 30 days from the date of the order of which the review is sought.  

The  respondents   had  earlier  challenged  the  said  order  dated  4.11.1997  

before the High Court, as well as before this Court.  Review petitions had  

been filed before the Special Court, as well as before the High Court.  Thus,  

question does arise as to whether it  is  permissible  for a litigant  to file a  

review application after approaching the superior forum/court.

Review – After approaching the Higher Forum:-

9. In M/s. Kabari Pvt. Ltd. Vs. Shivnath Shroff & Ors. AIR 1996 SC  

742,  this  Court  had  taken  a  view  that  the  court  cannot  entertain  an  

application for review if before making the review application, the superior  

court had been moved for getting the self-same relief, for the reason that for  

9

the self-same relief two parallel proceedings before the two forums cannot  

be taken.  

10. In State of Maharashtra & Anr. Vs. Prabhakar Bhikaji Ingle AIR  

1996 SC 3069, this Court held that when a special leave petition from the  

order of the Tribunal was dismissed by a non-speaking order, the main order  

was confirmed by the Court.   Thereafter,  the power of review cannot be  

exercised  by  the  Tribunal  as  it  would  be  “deleterious  to  the  judicial  

discipline”.

11. Same view has been reiterated by this Court in Raj Kumar Sharma  

Vs.  Union of India (1995) 2 Scale 23;  Sree Narayana Dharmasanghom  

Trust Vs.   Swami Prakasananda & Ors. AIR 1997 SC 3277;  K. Ajit  

Babu  &  Ors.  Vs.   Union  of  India  &  Ors. (1997)  6  SCC  473;  and  

Gopabandhu Biswal Vs.  Krishna Chandra Mohanty & Ors. AIR 1998  

SC 1872.  

12. In  Abbai  Maligai  Partnership  Firm  &  Anr. Vs.  K.  

Santhakumaran & Ors. AIR 1999 SC 1486, a three Judge Bench of  this  

Court considered the issue afresh and held that filing of the review petition  

after dismissal of the special leave petition by it  against the self-same order  

amounted to an abuse of process of the court and the entertainment of such a  

1

review  application  was  in  affront  to  its  order  and  it  was  subversive  of  

judicial discipline.  

13. In Kunhayammed & Ors. Vs. State of Kerala & Anr. AIR 2000 SC  

2587, a three Judge Bench of this Court reconsidered the issue and all above  

referred  judgments  and  came  to  the  conclusion  that  dismissal  of  special  

leave  petition  in  limine  by  a  non-speaking  order  may  not  be  a  bar  for  

entertaining a review petition by the court  below for the reason that  this  

Court may not be inclined to exercise its discretion under Article 136 of the  

Constitution.  The declaration of law will be governed by Article 141 where  

the matter has been decided on merit by a speaking judgment.  In that case  

doctrine  of  merger  would  come  into  place  and  lay  down  the  following  

principles:-      

(i)  Where  an  appeal  or  revision  is  provided   against  an order  passed by  a  court,  tribunal  or   any  other  authority  before  superior  forum  and  such superior forum modifies, reverses or affirms  the decision put in issue before it, the decision by   the subordinate forum merges in the decision by  the  superior  forum  and  it  is  the  latter  which   subsists,  remains  operative  and  is  capable  of   enforcement in the eye of law.

(ii) The jurisdiction conferred by Article 136 of the   Constitution is divisible into two stages. The first   stage  is  upto  the  disposal  of  prayer  for  special   leave  to  file  an  appeal.  The  second  stage  commences  if  and  when  the  leave  to  appeal  is   

1

granted and the special leave petition is converted   into an appeal.

(iii)  Doctrine  of  merger  is  not  a  doctrine  of   universal or unlimited application. It will depend  on  the  nature  of  jurisdiction  exercised  by  the   superior forum and the content or subject-matter   of challenge laid or capable of being laid shall be   determinative of the applicability of merger. The  superior  jurisdiction  should  be  capable  of   reversing, modifying or affirming the order put in   issue  before  it.  Under  Article  136  of  the   Constitution  the  Supreme  Court  may  reverse,   modify  or  affirm  the  judgment-decree  or  order  appealed  against  while  exercising  its  appellate   jurisdiction  and  not  while  exercising  the   discretionary jurisdiction disposing of petition for   special  leave  to  appeal.  The  doctrine  of  merger   can therefore be applied to the former and not to  the latter.

(iv) An order refusing special leave to appeal may  be  a  non-speaking  order  or  a  speaking  one.  In   either  case  it  does  not  attract  the  doctrine  of   merger. An order refusing special leave to appeal   does  not  stand substituted  in  place  of  the  order   under challenge. All that it means is that the Court   was not inclined to exercise its discretion so as to  allow the appeal being filed.

(v)  If  the  order  refusing  leave  to  appeal  is  a   speaking order, i.e., gives reasons for refusing the   grant  of  leave,  then  the  order  has  two  implications.  Firstly,  the  statement  of  law  contained in the order is a declaration of law by   the Supreme Court within the meaning of Article   141 of the Constitution. Secondly, other than the  

1

declaration of law, whatever is stated in the order   are the  findings recorded by the  Supreme Court   which would bind the parties thereto and also the   court,  tribunal  or  authority  in  any  proceedings   subsequent  thereto  by way of  judicial  discipline,   the  Supreme Court  being the  Apex  Court  of  the   country. But, this does not amount to saying that   the order of the court, tribunal or authority below   has  stood  merged  in  the  order  of  the  Supreme  Court rejecting the special  leave petition or that   the order of the Supreme Court is the only order   binding as res judicata in subsequent proceedings   between the parties.

14. The Court  came to  the  conclusion  that  where  the  matter  has  been  

decided by a non-speaking order in limine the party may approach the High  

Court by filing a review petition.   

Similar view has been reiterated in National Housing Coop. Society  

Ltd. Vs.  State of Rajasthan & Ors. (2005) 12 SCC 149.

15. In  K.  Rajamouli Vs.  A.V.K.N.  Swamy  AIR 2001  SC 2316,  this  

Court considered the ratio of the judgment in  Kunhayammed  (supra); and  

Abbai  Maligai  Partnership  Firm   (supra)  and  held  that  if  a  review  

application has been filed before the High Court prior to filing the special  

leave  petition  before  this  Court  and  review  petition  is  decided/rejected,  

special leave petition against that order of review would be maintainable.  In  

case the review application has been filed subsequent to dismissal  of the  

1

special leave petition it would amount to abuse of process of the court and  

shall  be  governed  by  the  ratio  of  the  judgment  in  Abbai  Maligai  

Partnership  Firm  (supra).   The  said  judgment  has  been approved  and  

followed  by  this  Court  in  M/s.  Green  View  Tea  &  Industries Vs.  

Collector, Golaghat, Assam & Anr. AIR 2004 SC 1738.   

16. In Kumaran Silk Trade (P) Ltd. Vs.  Devendra AIR 2007 SC 1185,  

this  Court held as under :-

“As a matter of fact at the earlier stage this Court did   not  consider  the  question  whether  one  of  the  appeals   against  the  order  dismissing  the  Review  Petition  on  merits was maintainable.  At best the order of remand   and the decision in  Kunhayammed & Ors. v.  State of   Kerala  &  Anr. (2000)  6  SCC  359  would  enable  the   petitioner to get over the ratio of the three Judge Bench   decision in  Abbai Maligai Partnership Firm & Anr. v.   K. Santhakumaran & Ors. (1998) 7 SCC 386 that the  seeking of a review after the petition for special leave to   appeal was dismissed without reserving any liberty in the   petitioner was an abuse of process.”

17. Thus, the law on the issue stands crystallized to the effect that in case  

a  litigant  files  a  review petition  before  filing  the  Special  Leave  Petition  

before  this  Court  and  it  remains  pending  till  the  Special  Leave  Petition  

stands dismissed, the review petition deserves to be considered. In case it is  

filed subsequent to dismissal of the Special Leave Petition, the process of  

filing review application amounts to abuse of process of the court.

1

18. In view of the above, we are of the considered opinion that filing of  

such a review application  by the respondents at a belated stage amounts to  

abuse of process of the Court and such an application is not maintainable.  

Thus, the High Court ought not to have entertained  the writ petition against  

the order of dismissal of the review application by the Special Court and the  

order of the High Court to that extent is liable to be set aside.        

19. So far  as  the  other  application  filed  by  the  respondents  before the  

Special Court is concerned, it is based on the grounds that earlier judgment  

and order had been obtained by the appellant/applicant suppressing material  

facts and the suit land had not been identified properly, and therefore, the  

judgment  of  the  Special  Court  duly  affirmed  by  the  High  Court  stood  

vitiated.

Fraud/Misrepresentation: –

20. It  is  settled  proposition  of  law  that  where  an  applicant  gets  an  

order/office  by  making  misrepresentation  or  playing  fraud  upon  the  

competent  Authority,  such order  cannot  be sustained  in  the  eyes  of  law.  

“Fraud  avoids  all  judicial  acts  ecclesiastical  or  temporal.”  (Vide  S.P.  

Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. &  

Ors. AIR 1994 SC 853). In  Lazarus Estate Ltd. Vs.  Besalay 1956 All.  

1

E.R. 349), the Court observed without equivocation that “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.”

21. In  Andhra Pradesh State  Financial  Corporation Vs.  M/s.  GAR  

Re-Rolling Mills & Anr. AIR 1994 SC 2151; and State of Maharashtra &  

Ors. Vs. Prabhu (1994) 2 SCC 481. this Court observed that a writ Court,  

while  exercising  its  equitable  jurisdiction,  should  not  act  as  to  prevent  

perpetration  of  a  legal  fraud  as  the  courts  are  obliged  to  do  justice  by  

promotion of good faith. “Equity is, also, known to prevent the law from the  

crafty evasions and sub-letties invented to evade law.”

22. In  Smt. Shrisht Dhawan Vs.  M/s. Shaw Brothers. AIR 1992 SC  

1555, it has been held as under:–

“Fraud and collusion vitiate even the most solemn  proceedings in any civilised system of jurisprudence. It is   a concept descriptive of human conduct.”

23. In  United  India Insurance Co. Ltd. Vs.  Rajendra Singh & Ors.  

AIR 2000 SC 1165,  this Court observed that “Fraud and justice never dwell  

together” (fraus et jus nunquam cohabitant) and it is a pristine maxim which  

has never lost its temper over all these centuries.

1

24. The ratio laid down by this Court in various cases is that dishonesty  

should not  be permitted to bear  the fruit  and benefit  to the persons who  

played fraud or made misrepresentation and in such circumstances the Court  

should  not  perpetuate  the  fraud.  (See  District  Collector  &  Chairman,  

Vizianagaram Social Welfare Residential School Society, Vizianagaram  

& Anr. Vs. M. Tripura Sundari Devi (1990) 3 SCC 655; Union of India  

& Ors. Vs.  M. Bhaskaran (1995) Suppl.  4 SCC 100;   Vice Chairman,  

Kendriya Vidyalaya Sangathan & Anr. Vs. Girdharilal Yadav (2004) 6  

SCC 325; State of  Maharashtra v.  Ravi Prakash Babulalsing Parmar  

(2007)  1  SCC 80;  Himadri  Chemicals  Industries  Ltd. Vs.  Coal  Tar  

Refining Company AIR 2007 SC 2798; and Mohammed Ibrahim & Ors.  

Vs. State of Bihar & Anr. (2009) 8 SCC 751).

25. Fraud is an intrinsic, collateral act, and fraud of an egregious nature  

would vitiate the most solemn proceedings of courts of justice. Fraud is an  

act  of  deliberate  deception  with  a  design  to  secure  something,  which  is  

otherwise not due. The expression “fraud” involves two elements, deceit and  

injury to the person deceived.  It is a cheating intended to get an advantage.  

(Vide  Dr. Vimla Vs.  Delhi Administration AIR 1963 SC 1572;  Indian  

Bank Vs.  Satyam Fibres (India) Pvt. Ltd.  (1996) 5 SCC 550;  State of  

Andhra Pradesh Vs.  T. Suryachandra Rao AIR 2005 SC 3110;  K.D.  

1

Sharma Vs. Steel Authority of India Ltd. & Ors. (2008) 12 SCC 481; and  

Regional Manager, Central Bank of India Vs.  Madhulika Guruprasad  

Dahir & Ors. (2008) 13 SCC 170).  

26. An act of fraud on court is always viewed seriously. A collusion or  

conspiracy with a view to deprive the rights of the 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.  Fraud  is  proved  when  it  is  shown  that  a  false  

representation has been made (i) knowingly, or (ii) without belief in its truth,  

or  (iii)  recklessly,  careless  whether  it  be  true  or  false.  Suppression  of  a  

material document would also amount to a fraud on the court. (Vide  S.P.  

Changalvaraya Naidu  (supra);  Gowrishankar & Anr. Vs.  Joshi Amba  

Shankar Family Trust & Ors.  AIR 1996 SC 2202; Ram Chandra Singh  

Vs. Savitri Devi & Ors. (2003) 8 SCC 319; Roshan Deen Vs. Preeti Lal  

AIR 2002 SC 33;  Ram Preeti Yadav Vs.  U.P. Board of High School &  

Intermediate Education AIR 2003 SC 4628; and Ashok Leyland Ltd. Vs.  

State of Tamil Nadu & Anr. AIR 2004 SC 2836).  

1

27. In kinch Vs. Walcott (1929) AC 482, it has been held that “….mere  

constructive fraud is not, at all events after long delay, sufficient but such a  

judgment  will  not  be  set  aside  upon  mere  proof  that  the  judgment  was  

obtained y perjury.”

Thus,  detection/discovery  of  constructive  fraud  at  a  much  belated  

stage may not be sufficient to set aside the judgment procured by perjury.  

28. From the above, it is evident that even in judicial proceedings, once a  

fraud is proved, all advantages gained by playing fraud can be taken away.  

In  such  an  eventuality  the  questions  of  non-executing  of  the  statutory  

remedies  or  statutory  bars  like  doctrine  of  res  judicata are  not  attracted.  

Suppression of any material fact/document amounts to a fraud on the court.  

Every court has an inherent power to recall its own order obtained by fraud  

as the order so obtained is non est.  

29. The instant case required to be examined in the light of the aforesaid  

settled legal propositions.   

The case of the respondents has been that transfer by the vendor in  

favour  of  the  appellant  was  not  genuine.  Material  information  had  been  

suppressed  from  the  Special  Court.  More  so,  there  was  no  proper  

identification of the suit land in the earlier litigation. The reports submitted  

in this regard were not correct.   

1

30. Respondents  have  never  been  able  to  show  as  under  what  

circumstances they are interested in the suit land because before the Special  

Court in the first round they failed to show any document that land had ever  

been transferred by the tenure holders/owners in favour of the Society or the  

Society had made any allotment in their  favour or they were member of the  

said Society or they  obtained any sanction from statutory authority to raise  

the construction.   

Shri  M.V.  Durga  Prasad,  Ld.  Counsel  appearing  for  the  said  

respondents was repeatedly asked by us to show any document on record  

linking the said respondents with the suit land.  Though, he argued for a long  

time, raised large number of issues but could not point out a single document  

which may reflect that respondents could have any claim on the suit land.  

Therefore,  we are  of  the  considered  opinion  that  the  application  at  their  

behest was not maintainable.  

31. The issue of mis-representation/fraud, suppression of material fact and  

identification of land had been in issue in earlier review petitions before the  

Special Court and in the Writ Petitions before the High Court. In this regard,  

the Special Court in execution proceedings was fully satisfied regarding the  

identity of land on the basis of revenue record and came to the conclusion  

that  there  was  no  mis-representation  or  fraud  on  the  part  of  the  

2

appellant/applicant.  The order  of  the  Special  Court  dated  11th July,  2006  

made it clear that all these issues had been agitated in earlier proceedings.  

The Special Court has held as under:

“The applicants herein as contended in this L.G.C. have filed   IA No.869/2002 for stay of proceedings and IA No. 861/2002   for summoning the record in File No.B/9815/97 from the office   of  the  Revenue  Divisional  Officer  on the  ground of  alleged  fraud played by the Mandal Revenue Officer and the Mandal   Surveyor.  Those  petitions  were  heard  at  length  and  were   dismissed holding that the alleged fraud as contended by the   applicants herein was not made out and the property which is   the subject matter of L.G.C. No.76/96 should be delivered to   the respondents herein by evicting the applicants. As mentioned  already, in execution of the said order, applicants herein were  evicted and possession was delivered to the respondents.  

Admittedly,  the  common  order  passed  in  IA  Nos.   518/2002,  861/2002  and  869/2002,  by  this  Court  was  questioned  by  the  applicants  herein  by  filing  Writ  Petitions   before the Hon’ble High Court of A.P. and the same was also  dismissed  holding  that  the  applicants  herein  are  trying  to   protract the litigation and to delay the delivery of possession of   the property in question to the respondents.”(emphasis added)

32. In another case decided by the Special Court vide order dated 6th July,  

2006 the Court had taken note of the pleadings in respect of identification of  

land and mis-representation/fraud/collusion in the earlier  proceedings and  

the observations made by the Writ Court in its order dated 17th December,  

2002 that the said respondents were interested in protracting the litigation  

and obstructing the implementation of the order of the Special Court dated  

2

4.11.1997.  The said order had been passed in Application No. 51 of 2002  

where one of the main grounds had been that the appellant/applicant  had  

played fraud  in obtaining the said order as is taken note of in paragraph 13  

of the said order by the Special Court.  The Special Court also took note of  

earlier direction to the Revenue Divisional Officer to identify the land and  

possession of the same was delivered to the decree holder. The said order  

was under challenge before the High Court in Writ Petition Nos. 22953/2002  

and 23105/2002 wherein pleading of the alleged fraud and mis-identification  

of suit land were taken. The Special Court came to the conclusion that there  

was no suppression of any fact by the revenue authorities or the  court was  

misled at the time of obtaining such orders.    

33. There  is  a  registered  sale  deed  dated  21.5.1980  in  favour  of  the  

appellant/applicant.   Nobody  has  ever  filed  any  application  before  the  

competent court to declare said sale deed as null and void.  Respondents  

have no right or interest in the suit property.  The Society claimed to have an  

agreement to sell  in its favour which did not confer any title in favour of the  

Society.  A finding of fact had been recorded in earlier proceedings that the  

appellant/applicant was in actual physical possession of the land and he was  

illegally/forcibly  dispossessed by the respondents.  

2

Forcible dispossession:-

34. Even a trespasser cannot be evicted forcibly.  Thus, a person in illegal  

occupation of the land has to be evicted following the procedure prescribed  

under  the  law.   (Vide  Midnapur Zamindary  Co.  Ltd. Vs.  Naresh  

Narayan Roy AIR 1924 PC 124; Lallu Yeshwant Singh Vs. Rao Jagdish  

Singh & Ors. AIR 1968 SC 620; Ram Ratan Vs. State of U.P. AIR 1977  

SC 619; Express Newspapers Pvt. Ltd. & Ors. Vs. Union of India & Ors.  

AIR 1986 SC 872; and  Krishna Ram Mahale Vs.  Mrs. Shobha Vankat  

Rao AIR 1989 SC 2097) .

35. In  Nagar  Palika,  Jind Vs.  Jagat  Singh AIR 1995 SC 1377, this  

Court observed that Section 6 of the Specific Relief Act 1963 is based on the  

principle that even a trespasser is entitled to protect his possession except  

against the true owner and purports to protect a person in possession from  

being dispossessed except in due process of law.

36. Even the State authorities cannot dispossess a person by an executive  

order. The authorities cannot become the law unto themselves. It would be  

in violation of the rule of law. Government can resume possession only in a  

manner known to or recognised by law and not otherwise. (Vide Bishan Das  

Vs.  State of Punjab AIR 1961 SC 1570; Express Newspapers Pvt. Ltd.  

(supra);  State of U.P. & Ors. Vs. Maharaja Dharmander Prasad Singh  

2

&  Ors.  AIR  1989  SC  997; and  State  of  West  Bengal  &  Ors.  Vs.  

Vishnunarayan & Associates (P) Ltd. & Anr. (2002) 4 SCC 134).

37. The  forcible  eviction  of  the  appellant/applicant  by  the  respondents  

was unwarranted and unlawful.  Proceedings had been initiated under the  

Act, 1982.  It is a special Act  to prevent illegal activities of land grabbing.  

The Legislature, in its wisdom, constituted a Special Court presided over by  

a person who is or eligible to be the Judge of the High Court, and consisting  

of the Members who are or eligible to become District Judge and District  

Collector.   Therefore,  persons  having  enough  experience  and  who  have  

acquired a higher status have been given responsibility to adjudicate upon  

the disputes under the Act 1982.  That Special Court has been conferred with  

the powers of Civil or Criminal Courts.   

As per the provisions of Section 10 of the Act 1982, the burden of  

proof is on the accused to prove that he is not guilty.  Thus, it is not like any  

other criminal case where accused is  presumed to be innocent unless the  

guilt is proved.  The presumption of innocence is a human right, however,  

subject  to  the  statutory  exceptions,  the  said  principle  forms the  basis  of  

Criminal  Jurisprudence.   For  this  purpose,  the  nature  of  offence,  its  

seriousness and gravity thereof has to be taken into consideration.  Statutes  

like Negotiable Instruments Act, 1881; Prevention of Corruption Act, 1988;  

2

and Terrorist and Disruptive Activities (Prevention) Act, 1987, provide for  

presumption  of  guilt  if  the  circumstances  provided  in  those  Statutes  are  

found  to  be  fulfilled  and  shift  the  burden  of  proof  of  innocence  on  the  

accused.  Thus, the Legislature has adopted a deviating course from ordinary  

criminal law shifting the burden on the accused to prove that he was not  

guilty.  The High Court while deciding these cases has not considered the  

issue of the locus standi of the respondents to maintain the application for  

eviction of the appellant/applicant. Chagrined and frustrated litigants should  

not be permitted to give vent to their frustrations by cheaply invoking the  

jurisdiction of the court.  The court proceedings ought not to be permitted to  

degenerate into a weapon of harassment and persecution.   

38. In  view  of  the  above  factual  position,  we  reach  the  following  

conclusions:

(i) There  has  been  a  registered  sale  deed  in  favour  of  the  

appellant/applicant by the vendors which was registered  on 21.5.1980 and  

he was put in possession.  

(ii) Prior  to  the  execution  of  the  said  sale  deed  there  has  been  an  

agreement to sell dated 23.1.1976 in favour of the Society.

2

(iii) In respect of the said agreement to sell the litigation remained pending  

before the Civil Court but there is nothing on record to show as to what had  

been its outcome.   

(iv) An agreement to sell did not confer any right on the Society, though  

the  appellant  acquired  the  title  over  the  suit  land  by  execution  and  

registration of the sale deed dated 21.5.1980.

(v) The respondents had not been the members of the Society nor Society  

made any allotment in their favour.   

(vi) Before the Special  Court,  the respondents could not show as under  

what circumstances they could stake their claim on the suit land and  no  

document worth the name could be shown which may link them to the suit  

land.  

(vii) Respondents grabbed the suit land forcibly and raised a construction  

without any authorisation.

(viii) In spite of our repeated queries, learned counsel for the respondents  

could not point out a single document on record to show that they could  

have any right, interest or title in the suit land.  

(ix) The litigation completed several  rounds before the High Court and  

this is the second round of litigation before this Court.  

2

(x) All the courts proceedings reveal that after proper adjudication  the  

declaration had been made that suit land belonged to the appellant/applicant  

and respondents were merely land grabbers.  

(xi) In earlier review petitions filed by the respondents before the Special  

Court and further taking the matter to the High Court in Writ Petitions and  

Review  Applications  before  the  High  Court  the  issue  of  mis-

representation/fraud/collusion  and  mis-identification  of  the  suit  land  had  

been raised but they could not succeed.

(xii) In execution proceedings, the appellant/applicant succeeded and came  

in possession of the suit land in 2002.  

(xiii) Respondents filed frivolous application raising the issue of fraud and  

mis-identification of the suit land which had earlier been adjudicated  upon.  

The  review application was filed at much belated stage.   

(xiv) The  review  application  was  certainly  not  maintainable  as  the  

respondents had approached the higher forum  and it merely amounted to  

abuse of process of the court.   

(xv) The respondents had been interested only to protract the litigation by  

one way or the other.   

(xvi) Fresh proceedings taken by the respondents before the Special Court  

in fact, is tantamount to malicious prosecution.   

2

39. The High Court failed to take all aforesaid factors  into consideration  

before passing impugned judgment and order.      

40. In view of the above, we are of the considered opinion that judgment  

and order of the High Court impugned herein, is not sustainable in the eyes  

of law.  The appeals are allowed. The judgment of the High Court dated  

26.4.2007 is  set  aside  and the  judgments  and orders  dated  6.7.2006 and  

11.7.2006 passed by the Special Court are restored.   No costs.

…………………………….J. (P. SATHASIVAM)

……………………..……..J. New Delhi, (Dr. B.S. CHAUHAN) August 16, 2010   

2