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TMI Blog2012 (1) TMI 386X X X X Extracts X X X X X X X X Extracts X X X X ..... r. On the same day the statement of the Petitioner and late Andappa were shown to have been recorded without issuing any notice on the Application and an Order was passed on the same day thereby declaring that the Petitioner has purchased 1/2 northern portion of land bearing Gat No. 98 to the extent of 2 Hector 2 R from late Andappa. It is an admitted position that this order was however, not challenged. It is also an admitted position that late Andappa was an illiterate person whereas the Petitioner was employed in Indian Railways. 3. In the year 1984 late Andappa filed Tenancy Application No. 107 of 1984 under Section 31, 32R and 33-B of the Act before the Additional Tahasildar and ALT, South Solapur. The Application was filed on the basis that the order of statutory purchase in respect of northern 1/2 portion of Gat No. 98 was obtained on the basis of false documents and that the Petitioner is not cultivating the said land personally and gives land to other persons as the Petitioner was serving at Miraj Railway Station. The ALT issued notice of this Application and the Petitioner filed reply. Evidence was led. Ultimately by Judgment and Order dated 17/11/1984, the ALT and Add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .T. A.L. Act, is not tenable in itself for getting possession. The applicant u/s 31 is to be filed before 31.3.1957. The application u/s 33-B can be filed after obtaining exemption certificate. The application u/s 32-R is applicable only if the purchaser fails to cultivate the land personally and if the purchase had been made u/s. 32-O of the B.T. A.L. Act. In such case, the purchaser would be evicted and the land shall be disposed off u/s. 84-C of the Tenancy Act. In such case, even direct possession cannot be demanded. So, the application for possession filed by the applicant u/s 31, 33-B and 32-R is not itself tenable in respect of possession to him. However, he has challenged the order passed u/s 32-O by pointing out that the order passed u/s 32-O was illegal and nullity. So, the order passed u/s. 32-O will have to be set aside and the matter will have to be remanded to the trial court to start fresh proceeding u/s. 32-O and to decide it according to law, Proceeding u/s 32-O can be started on application of any party or it cannot be started suo-motu u/s 32-P of the B.T. A.L. Act. In the result, I pass the following order. ORDER This revision application is allowed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rected the fresh enquiry about validity or otherwise of the said order. It is submitted that even void order has to be challenged in appropriate proceedings in appropriate time and even void order cannot be ignored by other courts or authorities even in collateral proceedings. f) It was lastly urged that assuming again for the sake of argument that the Order dated 19/12/1975 is a nullity, unless and until the same is set aside by the appropriate proceedings, the same remains as a valid order and cannot be ignored. This argument was specifically advanced without prejudice to the earlier submissions. g) In support of these submissions they relied upon the following Judgments : (i) M. Meenakshi ors. v/s. Metadin Agarwal ors. and paragraphs 17 and 18 thereto were relied upon. (2006) 7 SCC 470 (ii) Collector of Central Excise, Kanpur v/s. Flock (India) Pvt.Ltd. (2000) 6 SCC 650 and paragraph 10 thereof was relied upon. (iii) Pankaj Bhargava Anr. v/s. Mohinder Nath Anr. (1991) 1 SCC 556 and the observations in paragraphs 13, 16, 20 and 23 were relied upon. (iv) Bhimrao Hanmant Patil(deceased) through Lrs. ors. vs. Naganath Santoba Bubane Anr. (A.M. Khanwilka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce an Application under Section 33B can be filed only by certificated landlord who has obtained certificate under Section 88C. Thus the Application filed by the Respondent late Andappa was essentially an Application filed under Section 32R and reference to Sections 31 and 33B was a misnomer. In fact even the learned Member, MRT has held that the Application filed by Andappa is not maintainable. In my opinion, the said Application has been rightly dismissed and there is no need to interfere with that part of the operative order passed by the learned Member, MRT. 12. Consideration of the controversy involved in this Petition will however depend on the following 2 aspects namely (a) whether the Order dated 19/12/1975 passed by the ALT South Solapur in proceedings under Section 32O can be held to have been obtained by practising fraud? (b) Whether the said order can be held to be a nullity? If the answer to the aforesaid question No. a or b is in favour of the Respondents even then the impugned order passed by the learned Member of MRT can be sustained. 13. Mr. Shinde and Mr. Kulkani, Advocates for Petitioner are justified in pointing out that plea of fraud is essentially a quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdingly and hold that in these proceedings it was not open to the Authorities to go into the question as to whether the Order dated 19/12/1975 was obtained by fraud or not. I however, do not propose to foreclose the remedy of heirs of Late Andappa to challenge the said order on the ground that it was obtained by fraud either by filing an Appeal or by filing an application for setting aside the said Order. It would also be open to the Respondents to raise this question before the Civil Court by filing a Suit for appropriate reliefs. All the contentions of the respective parties in that behalf will have to be kept open and which are accordingly kept open. 15. It is however necessary to answer the question No. (b) as to whether the Order dated 19/12/1975 can be said to be a nullity. The consideration of this question will have to be divided in 2 parts. If an Order is obtained by playing fraud upon a statutory Authority it still becomes nullity. However, as stated above, that question will have to be gone into either in an Appeal or in proceedings for setting aside the Order on the ground of fraud or in a Civil Suit and contentions in that regard will have to be kept open. Other cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e bad in law, they were required to be set aside in an appropriate proceeding. They were not the subject matter of the said suit and the validity or otherwise of the said proceeding could not have been gone into therein and in any event for the first time in the Letters Patent Appeal. 18. It is a well-settled principle of law that even a void order is required to be set aside by a competent court of law inasmuch as an order may be void in respect of one person but may be valid in respect of another. A void order is necessarily not non est. An order cannot be declared to be void in a collateral proceeding and that too in absence of the authorities who were the authors thereof. The order passed by the authorities were not found to be wholly without jurisdiction. They were not, thus, nullities. 20. In Collector of Central Excise(supra) the Supreme Court has observed in paragraph-10 as under : 10. Coming to the question that is raised there is little scope for doubt that in a case where an adjudicating authority has passed an order which is appealable under the statute and the party aggrieved did not choose to exercise the statutory right of filing an appeal, it is not open to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where there is no lack of inherent jurisdiction but what is disputed is only the existence or non-existence of facts which though collateral to the merits do require investigation into and adjudication upon their existence or non-existence on the basis of evidence. If the parties before the Rent Controller have admitted that the fact or the event which gives the Controller jurisdiction is in existence and there was no reason for the Controller to doubt the bona fides of that admission as to a fact or event, the Controller is under no obligation to make further enquiries on his own as to that factual state. The test of jurisdiction over the subject matter is whether the court or Tribunal can decide the case at all and not whether the court has authority to issue a particular kind of order in the course of deciding the case. 21. A learned author says: A court is said to have jurisdiction of the subject matter of a particular controversy if the court has authority to hear and decide causes of a class to which the particular controversy belongs. In defining jurisdiction of the subject matter in these terms, the courts have emphasised that the jurisdiction of a court depends upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, in the ultimate analysis, not as sound as it might at first sight appear. The expression 'fraud on the statute' is merely a figurative description of a colourable transaction to evade the provisions of a statute and does not, for purposes of choice of the remedy, distinguish itself from the consequences of fraud as vitiating the permission Under Section 21 referred to in Vohra's case. 22. In Pandharinath Kavitke (supra) the learned Single Judge has observed thus in paragraphs 9 to 11 : 9. Now coining back to the contention raised on behalf of the Respondent that since the order passed by the Tenancy Court on 15.7.1963 in proceedings under Section 32G was nullity, the appeal preferred by the Respondent in May 1983 against the said order, although beyond limitation, was maintainable, I am afraid the same deserves to be stated to be rejected. In my view, if this stand taken by the Respondent is rejected, as a necessary corollary the appeal preferred by the Respondent ought to have been dismissed on the ground that the same was hopelessly time barred. The learned Counsel for the Respondent had placed reliance on the Full Bench decision of this Court reported in (su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his right, or for some other legal reason. In any such the 'void' order remains effective and is in reality void. It follows that an order may be void for one purpose and valid for another, and that it may be void against one person but valid against another (ibid p. 352) Para 8. It will be clear from these principles, the party aggrieved by the invalidity of the order has to approach the Court for relief of declaration that the order against him is inoperative and not binding upon him. He must approach the Court within the prescribed period of limitation. If the statutory time limit expires the Court cannot give the declaration sought for. The Apex Court has thus held that invalidity of the order, though plainly visible, it is necessary to take out necessary and appropriate proceedings to establish the case of invalidity and get it quashed, failing which the said order will remain as effective as any other valid order. In para 8 of the said decision the Apex Court has held that the person who claims the order to be nullity, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered by different Benches of this Court. In the case of Narhar Shamrao Deshpande v. Lakhu Raghu Dalvi, (Since deceased) through his heirs, Yeshwant Laxman and Anr., 1984(1)BomCR14 Justice R.D. Tulpule, as he then was, has dealt with similar contention and has rejected the same. In my view the said decision would squarely apply to the facts of the present case. In another decision in Madhavdas Damodardas Gujar and Ors. v. Mahadu Kern Raul, 1994(1)BomCR509 following the aforesaid decision of Justice Tulpule, this Court has reiterated the said legal position. Another decision of Justice R.M. Lodha reported in has also held that the appeal filed against an order which is alleged to be null and void needs to be filed within limitation or at least sufficient cause should be shown for condoning the delay. There is one more decision of this Court which has considered this question and answered the same against the Respondent reported in 2000(2)BomCR90 of Justice D.G. Deshpande. In view of the consistent view taken by this Court, it is not open for me to take a different view and particularly because of the decision of the Apex Court referred to above. In the present case we have alre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a tenant in respect of the northern 1/2 portion of Gat No. 98 owned by Late Andappa. In view of this it cannot held that the Order passed on 19/12/1975 was an Order passed by an Authority suffering from inherent lack of jurisdiction and to that extent part of the question (b) will have to be answered in favour of the Petitioner and against the Respondents. 26. As an outcome of the aforesaid discussion, I pass the following order : (i) Rule is made partly absolute. The impugned Judgment and Order passed by the learned Member of the M.R.T., Pune in Revision Application No. 218 of 1989 to the extent it holds that Tenancy Application No. 107 of 1984 filed by Late Andappa Walekar before the Tahasildar ALT, South Solapur was liable to be rejected is not interfered with. (ii) However, the impugned Order of the learned Member, M.R.T. to the extent the same allows the Revision Application and remands the matter to the Trial Court to start fresh proceedings under Section 32-O is quashed and set aside. (iii) It is held that the Order dated 19/12/1975 did not suffer from inherent lack of jurisdiction in the Mamlatdar and ALT, South Solapur. It is however clarified that the que ..... X X X X Extracts X X X X X X X X Extracts X X X X
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