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TMI Blog2003 (7) TMI 757X X X X Extracts X X X X X X X X Extracts X X X X ..... o the validity of the order passed by the Joint Collector, Additional District Magistrate, Medak District at Sanga Reddy dated 22-6-1994 whereunder directions have been issued to the Mandal Revenue Officer, Patancheru "to re-write the records and maintain records as was prevailing prior to making entries in favour of the decree holders in O.S. No. 3 of 1970". 3. The learned Single Judge allowed the writ petitions filed by the respondents-writ petitioners and accordingly quashed the said proceedings of the Joint Collector. Hence these writ appeals. 4. In order to consider as to whether the judgment of the learned Single Judge suffers from any infirmity requiring our interference, it may be just and necessary to notice the relevant facts leading to filing of the writ petitions as well as writ appeals. Factual matrix: 5. The origin of the claim of the respondents-writ petitioners is based upon a lease deed alleged to have been executed by the then Tahsildar Garbi Taluk of Atraf-i-Baldia District. The lands are situated in Ailapur Village. That huge extent of land admeasuring 496 bigas and 13 barns (equivalent to Ac. 369.05 guntas) alleged to have been granted on lease by the Tahsi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee) and the Moziz Committee dismissed the said appeal vide orders dated 26th Bahaman, 1350 Fasli. Precisely for the said reason, the said Hakim Mustafa Hussain filed a review petition dated 25th Ardibehist, 1350 Fasli before the Moziz Committee against its earlier orders dated 26th Bahaman, 1350 Fasli, in which the orders of Moziz Committee, both in law and on facts, were challenged. The said review was also dismissed by the Moziz Committee Sarf-e-khas on 11th Meher, 1352 Fasli. The simple case of the State is that Hakim Mustafa Hussain would not have filed any review petition had the Moziz Committee allowed his appeal as contended by him. The very fact that the review petition was filed itself would clinchingly establish that the appeal preferred by Hakim Mustafa Hussain was dismissed. It is the case of the State that the orders of Sarf-e-khas Committee were against both the lessee and the subsequent purchasers. Various instances are pointed out in support of the case of the State that the predecessor-in-title of the respondents-writ petitioners manipulated and concocted the order passed by the Committee by altering its last pages. We do not propose to go into in detail and make a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal was disposed of in terms of the compromise entered by and between the parties, whereas according to the respondents-writ petitioners the said appeal was disposed of after contest though there was a partial compromise between some of the parties. 11. A close reading of the decree and judgment rendered by a Division Bench of this Court in A.S. No. 506 of 1973 reveals that there has been a compromise only between the appellants and one of the respondents i.e., respondent No. 3 therein alone and the appeal was accordingly decreed in terms of the compromise between the appellants and respondent No. 3 therein by orders of the Court dated 19-2-1974 in CMP No. 894 of 1974 and between the appellants and respondents 6 to 15 as per the orders of the Court dated 10-9-1976 in CMP No. 7952 of 1976. We do not want to make any further comment about the same in these proceedings. 12. The legal representatives of Hakim Mustafa Hussain filed a petition dated 9-9-1981 before the Joint Collector, Medak at Sanga Reddy for mutation and implementation of the judgment and decree made in O.S. No. 3 of 1970, dated 20-6-1979 in the record of rights. The Joint Collector passed order dated 19-5-1982 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revenue records cannot be changed on the strength of such decrees adversely affecting the right, title and interest of the Government in Government lands. The Joint Collector found that the implementation of the decree obtained by the parties and consequent change in the records is vitiated by many procedural errors. The Joint Collector found that the entire village was sold for some nominal consideration by lessee in favour of a private individual, which included vast extent of Government land. The Joint Collector also found that the vast extent of land in respect of which entries are changed is in possession, occupation and enjoyment of the villagers and the entries made pursuant to the said decree adversely affected their rights. The Joint Collector further found that none of the contesting parties in the said suit were ever in possession of the lands at any point of time as the same is evident from the entries made in the records prior to their alteration by the authorities pursuant to the decree obtained by Shaik Imam Ali and others. Contentions in the wit petitions before the learned Single Judge: 16. The respondents-writ petitioners filed W.P.Nos. 17020 of 1994 and 1461 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of title and accordingly declared that the Government has no interest in the lands and the lands never belonged to the Government at any point of time. The learned Judge accordingly declared that the impugned order is unwarranted on merits. It is further held that it is without jurisdiction because it purports to review the order dated 19-5-1982 passed by the Joint Collector. Even if any such power was available, the same could be exercised only within a reasonable period and in the instant case the power was exercised after a lapse of more than 12 years, and therefore, the power exercised cannot be held to have been exercised within a reasonable time. Submissions: 20. The learned Advocate-General appearing on behalf of the appellants in W.A.Nos. 10 of 1998 and 125 of 2000 bitterly criticized the judgment rendered by the learned Judge of this Court. It was contended by the learned Advocate General that this Court in exercise of its jurisdiction under Article 226 of the Constitution of India cannot undertake to resolve the disputed questions of fact, in particular the questions relating to right, title and interest in immovable properties. The learned Judge, according to the learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayed and perpetrated by the predecessor-in-title of the respondents-writ petitioners. The predecessors-in-title of the respondents-writ petitioners have gone to the extent of mutilating and interpolating the records and quasi-judicial orders passed by the authorities. The operative portion of the order passed by the Moziz Committee has been manipulated, as is evident from the fact of filing of review petition by the same persons who claim to have succeeded in the appeal. The leaseholder, under no circumstances, could have conveyed any better title to the purchaser by selling away the lands, which included the Government lands. The sum and substance of the submission of the learned Advocate-General is that the fraud vitiates the whole of the proceedings right from its inception and the rights of the respondents-writ petitioners, if any, are required to be established now in accordance with law. The entries in the revenue records could not have been changed deleting the names of the persons who are in actual possession and enjoyment of the land without putting them on notice. It was also contended by the learned Advocate-General that the ROR Act itself has no application in respect o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the conditions or liabilities if any, attaching thereto; (c) the rent, revenue or other amount, if any, payable by, or to any of such persons; (d) such other particulars as may be prescribed. 27. Sub-section (3) of Section 3 of the ROR Act says that any person affected by an entry in such record of rights may, within a period of one year from date of the notification referred to in sub-section (2), apply, for rectification of the entry to such officer as may be prescribed. The said officer may, after such inquiry as may be prescribed, give his decision on such application and direct the rectification of the record of rights in accordance with such decision which shall, subject to the provisions of Section 9, be final. 28. Section 4 of the ROR Act provides for intimation of acquisition of rights. It says that any person acquiring by succession, survivorship, inheritance, partition, Government patta, decree of a Court or otherwise any right as owner, pattadar, mortgagee, occupant or tenant of a land and any person acquiring any right as occupant of a land by any other method shall intimate in writing his acquisition of such right, to the Mandal Revenue Officer within ninet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , which is relevant for our purpose, is as follows: 9. Revision :--The Collector may either suo motu or on an application made to him, call for and examine the record of any Recording Authority, Mandal Revenue Officer or Revenue Divisional Officer under Sections 3,5, 5-A or 5-B, in respect of any record of rights prepared or maintained to satisfy himself as to the regularity, correctness, legality or propriety of any decision taken, order passed or proceedings made in respect thereof and if it appears to the Collector that any such decision, order or proceedings should be modified, annulled or reversed or remitted for reconsideration, he may pass orders accordingly: Provided that no such order adversely affecting any person shall be passed under this section unless he had an opportunity of making a representation. 34. It is also necessary to have a look at Section 10, which deals with the powers of the Recording Authority for the purposes of holding an enquiry under the Act: 10. Powers of recording :--(1) A recording authority or an appellate authority or any other officer shall, for the purpose of holding any enquiry under this Act, have the same powers as are vested in a C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rieved and interested persons, but also prescribes and structures the power of the authorities under the Act and the manner of exercise thereof. It necessarily involves resolution of rival claims. 39. The recording authority and the appellate authority or any other officer for the purpose of holding any enquiry under the Act are clothed with the same powers as are vested in the Civil Court under the Code of Civil Procedure, 1908 when trying a suit in respect of summoning and enforcing the attendance of any person and examining him on oath: requiring the discovery and production of documents, etc. The statutory functions, thus, entrusted to the authorities under the Act are of judicial character. The authorities are required to hold enquiry and sitting and make decisions in relation to the proceedings brought before them for which purpose they are empowered to summon the witnesses and administer the oaths. The performance of functions entrusted to the authorities under the Act terminates any order that has the conclusive effect. The said orders are binding and conclusive inasmuch as they have the force of law without the need for confirmation or adoption by any other authority. Tho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e jurisdiction, either sito motu or on an application made to him, to call for and examine the record of any Recording Authority. Mandal Revenue Officer or Revenue Divisional Officer in respect of any record of rights prepared or maintained for the purpose of satisfying himself as to the regularity of such record, order or proceeding or the correctness of any decision passed or order made therein by any Recording Authority, Revenue Divisional Officer etc. It is a plain and simple revisional jurisdiction conferred upon the Collector to call for the records of the authorities subordinate to him and correct the irregularities, illegalities or improprieties of any decision taken by such authorities. In such view of the matter, we have no doubt whatsoever in our mind to hold that the Collector is not entitled to call for his own record and exercise the suo motu revisional jurisdiction vested in him under Section 9 of the ROR Act. Whether the revisional authority can review its own orders or reopen the proceedings, and if so when and on what grounds? 44. The next question that falls for consideration is as to whether the Collector is entitled to recall his own order in order to rectify ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fraud on the Court and when the facts were brought to the notice of the High Court, it is the High Court alone or on appeal the Supreme Court which is to correct such an order. 48. In S.P. Chengalvaraya Naidu (supra), the Apex Court observed that a judgment or decree obtained by playing fraud on the Court is a nullity and non est in the eyes of 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. 49. In Common Cause (supra), the Supreme Court rectified its own mistake and in that context observed: "The powers of this Court under Article 32 and that of the High Court under Article 226 are plenary powers and are not fettered by any legal constraints. If the Court, in exercise of these powers has itself committed a mistake, it has the plenary power to correct its own mistake." 50. We fail to appreciate as to how the said judgment renders any assistance whatsoever to the submission made by the learned Advocate-General. There cannot be any dispute whatsoever as to the plenary nature of power of this Court under Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nacceptable for more than one reason. The Joint Collector himself does not say that it is a case of rectification of any mistake. The Joint Collector proceeded to exercise his revisoinal jurisdiction conferred under Section 9 of ROR Act as if it was being exercised for the first time to correct the mistake of any recording or appellate authority under the provisions of the Act. 55. The Joint Collector mainly proceeded on the ground that the entries in the record of rights were altered, changed and modified based upon a compromise decree to which the Government is not a party resulting in prejudice to the claim of the Government in respect of its own lands. The earlier order of the same authority is sought to be reviewed in its entirety on a newly found substantial ground. It is not a case of any simple correction or rectification of any mistake in the order, but it is a substantial review of the order. Therefore, it is not a simple case of any rectification of mistake. 56. For the aforesaid reasons, we find no merit in the contention urged by the learned Advocate-General. Void and voidable order: 57. However, it was contended by the learned Advocate-General that the order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order alleged to be made in bad faith but challenged after the expiry of the limitation period, the order "had legal effect notwithstanding its potential invalidity." (See: Hoffmann La Roche v. Secretary of State (1974) 2 All ER 1128). (Emphasis is of ours). 61. It is unnecessary to recall the various judgments pronounced in this regard as the law is very clear that even a void order continues in de facto operation and the same can be ignored by an aggrieved person at his own risk and peril. Even such void orders continue to hold the field and have the effect in law like all other lawful orders until the same is set aside in a properly instituted proceedings at the instance of an aggrieved person. 62. In State of Kerala v. M.K. Kunkikannan Nambiar, AIR1996SC906 , the Supreme Court observed: "The word 'void' has a relative rather than an absolute meaning. It only conveys the idea that the order is invalid or illegal. It can be avoided. There are degrees of invalidity, depending upon the gravity of the infirmity, as to whether it is. fundamental or otherwise......" 63. In the instant case, the order dated 10-5-1982 passed by the Joint Collector remained un-impeached for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunals or Courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behaviour. This power is necessary for the orderly administration of the Court's business. Since fraud affects the solemnity, regularity and orderliness of the proceedings of the Court and also amounts to an abuse of the process of Court, the Courts have been held to have inherent power to set aside an order obtained by fraud practised upon that Court. Similarly, where the Court is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order. (See: Benoy Krishna Mukerjee v. Mohanlal Goenka (AIR 1950 WB287); Gajanand Sha v. Dayanand Thaknr; Krishnakumar v. Jawand Singh; Devendra Nath Sarkar v. Ram Rachpal Singh (ILR (1926) Luck 341); Saiyed Mohd. Raza v. Ram Saroop (ILR (1929) Luck 562; Bankey Behari Lal v. Abdul Rahman (ILR (1932) Luck 350); Lekshmi Amma Chacki Amma v. Mammen Mammen (1955 KLT 459). The Court has also the inherent power to set aside a sale brought about by fraud practised upon the Court (Ishwar Maht ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nji, [1952]1SCR135, observed: "Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself." 74. The same principle is reiterated in Mohinder Singh Gill v. Chief Election Commissioner, [1978]2SCR272 , Krishna Iyer, ) observed: "Orders are not like old wine becoming better as they grow older." 75. Therefore, we cannot ourselves take the averments made in the additional affidavit into consideration and supplement the reasons for sustaining the impugned order passed by the Joint Collector. That an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. 76. However, the learned Advocate-General placed before us the additional affidavit filed in the writ appeals giving th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , many a clever and dextrous knave would escape." 79. In our considered opinion, the above principle will apply not only to the Courts of law but also to the statutory authorities, which, like the recording authority, appellate authority or revisional authority under the ROR Act, are conferred with the power to record evidence by applying certain provisions of the Code of Civil Procedure including the power to enforce the attendance of witnesses and to receive evidence and affidavits. The recording authority and other authorities under the provisions of ROR Act are conferred with power to decide the disputes by following the prescribed procedure and invoking the power under Section 10 of the ROR Act read with the relevant rules framed thereunder. The Recording Authority, appellate authority as well as the revisional authority have jurisdiction not only to examine a witness on oath, but also to require the discovery and production of documents, etc., in order to decide the issues that arise for consideration before them. 80. Thus, we have no doubt in our mind that the revisional authority is entitled to make an enquiry into the allegations of fraud and collusion like those contain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The remedy under Article 226 of the Constitution of India, which is a summary in nature, is not available for such purposes. It is dangerous to grant declaration of title in respect of immovable properties in a proceeding under Article 226 of the Constitution of India, for which remedies under general law are available. Disputed questions relating to title cannot be satisfactorily gone into or adjudicated in a writ petition. (See for the proposition: Mohan Pandey v. Usha Rar Rajgaria, [1992]3SCR904 , State of Rajasthan v. Bhawani Singh, AIR1992SC1018 , and New Satgram Engineering Works v. Union of India, [1981]1SCR406 .) 84. We find no difficulty to set aside that portion of the judgment of the learned Single Judge whereunder the learned Judge declared that the Government has no title in respect of the lands in question. Conclusions: 85. For the aforesaid reasons we dispose of the writ appeals in the following manner; (a) the judgment of the learned Single Judge declaring that the Government has no title in respect of the lands in question is set aside. The learned Judge ought not to have gone into the intricate questions relating to the title of the parties in respect of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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