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SCA/7242/2009 17/ 17 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 7242 of 2009
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PREMLATABEN
WD/O DECEASED MAHENDRAKUMAR DESAI & 2 - Petitioner(s)
Versus
JAYANTIBHAI
RAMDAS PATEL & 5 - Respondent(s)
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Appearance
:
MR
DC DAVE for Petitioner(s) : 1 - 3.
Mr.BHARAT B. NAIK, SENIOR
ADVOCATE WITH Mr.AMIT M. PANCHAL WITH Mr.DHAVAL M BAROT for
Respondent(s) : 1,
MR UDAYAN P VYAS for Respondent(s) : 2 6.
Mr.ASIM
PANDYA for the proposed
respondents.
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CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
Date
: 13/04/2010
ORAL
ORDER
Heard
learned advocate Mr.D.C. Dave for the petitioners; learned senior
advocate Mr.Bharat Naik appearing with learned advocates Mr.Amit M.
Panchal and Mr.Dhaval M. Barot for respondent no.1; learned advocate
Mr.Udayan P. Vyas for respondents no.2 to 6; and learned advocate
Mr.Asim Pandya for the proposed respondents, as he stated that he has
filed a Civil Application for being impleaded as party in this
petition.
2. The
present petition is filed praying that,
[A] That
this Hon ble Court be pleased to issue writ of Certiorari or a writ
in the nature of Certiorari or any other appropriate writ, order or
direction quashing and setting aside the order dated 7/5/2007 passed
by 5th Addl. Civil Judge (SD), Vadodara, in Review
Application No. 169 of 2006 as modified by an order dated 28/5/2007
passed by 5th Addl. Civil Judge (SD), Vadodara, in Review
Application No. 89 of 2007 and further the judgment and Consent
decree dated 9/4/2007 passed by 5th Addl. Civil Judge
(SD), Vadodara, in Special Civil Suit No. 116 of 2007, being null,
void, unlawful and non-est, incapable of existence in the eye of law
and are not binding to the petitioners.
[B] That, this
Hon ble Court be pleased to carry out or caused to be carried out a
detail inquiry right from the grant of probate in respect of alleged
Will till the disbursement of the amount of compensation in favour of
the Respondent no.1 herein and upon the submission of the report,
take such stringent and coercive steps against the errant as the
interest of justice may demand.
[C] That,
pending admission, hearing and final disposal of this petition, this
Hon ble Court be pleased to stay the implementation and operation
of order dated 7/5/2007 passed by 5th Addl. Civil Judge
(SD), Vadodara, in Review Application No. 169 of 2006 as modified by
an order dated 28/5/2007 passed by 5th Addl. Civil Judge
(SD), Vadodara, in Review Application No. 89 of 2007 and further the
judgment and Consent decree dated 9/4/2007 passed by 5th
Addl. Civil Judge (SD), Vadodara, in Special Civil Suit No. 116 of
2007 and there upon be pleased to further direct the Respondent No.1
herein to deposit the entire amount of compensation taken away in the
Registry of this Hon ble Court.
3. Learned
advocate Mr.D.C. Dave for the petitioner s could not justify as to
how come after having contested the matter in SCA No.1592/ 09, a copy
of memo of petition is at page 216, wherein the reliefs prayed for
which are as under:
[A] This
Hon ble Court may be pleased to issue appropriate writ, order or
directions declaring the action of the respondent no.2 in disbursing
the amount of compensation to the respondent no.4 being malafide,
collusive, contrary to law and without jurisdiction and hence
violative of Article 14, 19, 21 and 300A of the Constitution of
India.
[B] This
Hon ble Court may be pleased to issue appropriate writ, order or
directions declaring the action of the respondent no.2 of not
considering the objections of the petitioners submitted in response
to notice u/s. 9 of the Act and their request for reference u/s. 30
of the Act being malafide, collusive and contrary to the known
procedure of law.
[C] This
Hon ble Court may be pleased to issue appropriate order or
directions, directing respondent no.1 to take appropriate actions
against respondent no.2 for his malafide acts and omissions and to
recover from him personally the amount disbursed by him in favour of
the respondent no.4 in violation of law.
[D] Pending
admission and final disposal of the present petition, the Respondents
may be jointly and severally be directed to redeposit the amount of
compensation disbursed in favour of the respondent no.4 in this
Hon ble Court.
[E] This
Hon ble Court may be pleased to grant ad-interim relief in terms of
clause (d).
Incidentally,
this petition was heard and decided with SCA No.2923/ 09, a copy of
which is produced at Annexure R-1, page 164. It will be appropriate
to note that SCA No.2923/ 09 was filed by the very petitioners who
are the petitioners in this petition. The reliefs prayed for in that
petition are as under:
[A] That
this Hon ble Court be pleased to issue writ of Mandamus or a writ
in the nature of Mandamus or any other appropriate writ, order or
direction declaring that the action of the Special Land Acquisition
Officer (Unit-1), Vadodara, the respondent nos. 2 herein, in making
the Final Award dated 11/12/2008 under Section 11 of the Land
Acquisition Act, 1894 and thereupon depositing the amount of
compensation to the extent of 18.90% coming to the share of the
petitioners and other heirs and legal representatives of the deceased
Mahendrakumar Desai in the District Court, Vadodara, whereas
disbursing the amount of compensation to the extent of balance 81.90%
coming to the share of the Respondent no.3 herein, is unlawful,
unjust, discriminatory, arbitrary and in patent violation of the
provisions of the Land Acquisition Act, 1894 and in violation of the
fundamental rights guaranteed to the petitioners under Art. 14 and
Art. 31A of the Constitution of India.
[B] That, this
Hon ble Court be pleased to issue writ of Mandamus or a writ in the
nature of Mandamus or any other appropriate writ, order or direction
commanding the Respondent no.1 and the respondent no.2 herein to
bring back forthwith to the State Exchequer the amount of
compensation released and disbursed in favor of the Respondent no.3
herein, pursuant to the Final Award dated 11/12/2008 approved by the
Respondent no.1 and declared by the Respondent no.2 under section 11
of the Land Acquisition Act, 1894.
Learned
advocate Mr.Dave submitted that the reliefs sought for in those
petitions are even if similar, the present petition can be pressed
into service. His main contention is that even by consent the parties
cannot confer a jurisdiction on a court and that being so, the orders
under challenge in this petition are non est in the eye of law.
The
contention though seems to be very convincing, it cannot be accepted
for the reason that the parties cannot be allowed to litigate the
same matter again and again and go on filing petitions one after the
other.
4. Learned
advocate Mr.Dave submitted that the case of the petitioners is that
their alleged consent was obtained by ‘fraud’ and in the alternative
by ‘coercion’. This Court is of the opinion that before making any
such submission, the party has to be sure as to whether, ‘consent was
obtained by executing threats’ and this amounts to, ‘perpetrating
fraud on the court’.
5. Learned
senior advocate for respondent no.1 submitted that this is nothing
but ‘an afterthought,’ inasmuch as no complaint whatsoever in any
form much less, criminal complaint for the so called threats having
been executed and thereby coercing the petitioners to grant consent
so as to perpetrate fraud on the court, is brought on record.
6.
Learned senior advocate for respondent no.1 herein also drew
attention of the Court to SCA No.20703/ 07, a copy of which is
produced at Annexure R/7 at page 285 and the reliefs prayed for in
that petition are at page 304, being paras 17. Reliefs being (a),
(b) and (c).
[A] That
this Hon ble Court be pleased to issue writ of Mandamus or a writ
in the nature of Mandamus or any other appropriate writ, order or
direction commanding the respondent no.2 to incorporate the names of
the petitioners in the Draft Award as persons entitled to
compensation to the extent of 18.10% solely on the basis of judgment
and consent decree dated 9/4/2007 passed in Special Civil Suit No.
116 of 2007 and on the basis of an order dated 28/5/2007 passed in
Review Application no. 89 of 2007, both in the Court of 5th
Addl. Civil Judge (SD), Vadodara, disregarding whether the names of
the petitioners appear in the property card in respect of the said
land.
[B] Alternatively,
if the respondent no.2 has already submitted the Draft Award for the
approval of the Respondent no.1, then this Hon ble Court be pleased
to issue writ of Mandamus or a writ in the nature of Mandamus or any
other appropriate writ, order or direction commanding the respondent
no.1 to incorporate the names of the petitioners in the Draft Award
as persons entitled to compensation to the extent of 18.10% solely on
the basis of judgment and consent decree dated 9/4/2007 passed in the
Special Civil Suit No.116 of 2007 and on the basis of an order dated
28/5/2007 passed in Review Application No. 89 of 2007, both in the
Court of 5th Addl. Civil Judge (SD), Vadodara,
disregarding whether the names of the petitioners appear in the
Property Card in respect of the said land.
[C] That this
Hon ble Court be pleased to issue writ of Mandamus or a writ in the
nature of Mandamus or any other appropriate writ, order or direction
commanding the Respondent no.3 to finalise Entry No. 577 entered in
the Property Card showing the names of the petitioners as persons
entitled to the said land to the extent of 18.10% by certifying the
same.
Learned
senior advocate for respondent no.1 submitted that these reliefs were
sought placing reliance on ‘consent’ which is now contended to have
been obtained under coercion, by executing threats and perpetrating
fraud on the court. Learned senior advocate for respondent no.1
invited attention of the Court to order passed in SCA No.20703/ 07, a
copy of which is available at page 98. It will be appropriate to
reproduce the order passed by the learned Judge of this Court
(Coram: Hon’ble Mr.Justice Akshay H. Mehta) dated 27/8/07:
1. The sole
grievance that has been made by the petitioner in this petition is
that in view of the decree passed between the parties in litigation
which has even gone up to the Apex Court and the apportionment has
been determined in the concerned decree, the Special Land Acquisition
Officer, while making the award, is not willing to take
the same into consideration and observe in his award that the
petitioner is entitled to receive 18.10% of the total compensation
for the land under acquisition.
2. I have
heard Mr. B. J. Shelat learned Senior advocate appearing with Mr.
Udayan Vyas learned advocate for the petitioner, Mr. Krunal Pandya
learned A.G.P., for respondents no. 1 to 3 and Mr. H.S. Mulia
learned advocate for respondent no. 4. I have also perused the record
of this petition. It clearly appears that there is no dispute that
the petitioner is entitled to receive 18.10% of the total
compensation which may be awarded to the owners of the land under
acquisition. Hence, respondent no. 2 is directed to make award
indicating the apportionment of the compensation and observe that the
petitioner will be entitled to receive 18.10% of the total
compensation that may be awarded under the land acquisition
proceedings, in respect of the lands in question.
3. With the
aforesaid directions, the petition stands disposed of. In the event
the award has been forwarded to respondent no. 1, the aforesaid
directions will be complied with by respondent no. 1.
In
light of the aforesaid discussion the Court finds that the present
petition is nothing but abuse of process of the court. Therefore, the
petition deserves to be dismissed with heavy cost, but in light of
the fact that the matter is having a chequered history and
proceedings are pending before the Hon’ble the Apex Court, this Court
restrains itself from passing any order qua cost.
7. Learned
advocate Mr.Vyas vehemently submitted that so far as respondents no.2
to 5 are concerned they are the daughters, whereas, respondent no.6
is son who is staying abroad. He submitted that he adopts arguments
made by the learned advocate for the petitioners, more particularly,
the argument that, ‘by consent of the parties, no jurisdiction can be
conferred on the court’. In support of this submission he places
reliance on a decision of the Hon’ble the Apex Court in the matter of
Bahrein Petroleum Co. Ltd. Vs. P.J. Pappu and another,
reported in A.I.R. 1966 SC 634. He placed reliance on para 32 of the
said judgement.
The
learned advocate next relied upon a decision of the Hon’ble the Apex
Court in the matter of Kiran Singh and others Vs. Chaman Paswan
and others, reported in A.I.R. 1954 SC 340. He relied upon
the observations made by the Apex Court in para 6, which read as
under:
The answer
to these contentions must depend on what the position in law is
when a Court entertains a suit or an appeal over which it has no
jurisdiction, and what the effect of section II of the Suits
Valuation Act is on that position. It is a fundamental principle
well established that a decree passed by a Court without
jurisdiction is a nullity, and that its invalidity could be set up
whenever and wherever it is sought to be enforced or relied
upon, even at the stage of execution and even in collateral
proceedings. A defect of jurisdiction, whether it is
pecuniary or territorial, or whether it is in respect of the
subject-matter of the action, strikes at the very authority of the
Court to pass any decree, and such a defect cannot be cured even by
consent of parties. If the question now under consideration fell to
be’ determined only on the application of general principles
governing the matter, there can be no doubt that the District
Court of Monghyr was coram non judice, and that its judgment and
decree would be nullities. The question is what is the effect of
section 11 of the Suits Valuation Act on this position.
8. The
question of conferring jurisdiction by consent of the parties is well
settled by not only the aforesaid decision but various other
decisions of the Hon’ble the Apex Court. The question is as to
whether to the facts of the present case, the same are applicable,
more particularly, when the petition is filed by the petitioners
lacks bona fides. It is nothing but playing hot and cold in the same
breath. Therefore, this Court is of the opinion that the aforesaid
decisions of the Hon’ble the Apex Court are of no help to respondents
no.2 to 6.
9. Learned
advocate Mr.A.J. Pandya, who sought permission to intervene on the
ground that, his clients are third generation and are having interest
in co-parcenery property. The fact that the Division Bench of this
Court has referred to SCA No.7242/ 09 in its judgement and order
dated 4.12.09, in para 9.3, there is no justification for which the
clients of Mr.A.J. Pandya should have waited so long for filing CA.
Today, when this matter is taken up for consideration on a request
made by learned advocate for respondent no.1 on the ground that
interim relief obtained as back as on 16.7.09 is operating till date
without any effective hearing of the matter, they have come forward
to intervene.
On
this short ground that, though clients of Mr.Pandya knew about
pendency of the present matter being SCA 7242/ 09 as back as in the
month of December 2009, there is no reason for which they should have
waited for filing a CA in the present petition, they do not deserve
any consideration. Not only delay and laches is there on their part,
but their conduct shows that they were sitting on the fence waiting
for the outcome of the present proceedings. They wanted to intervene
at a stage when they feel that it is necessary to stall the hearing
of the petition.
10. In
fact, the learned advocate for respondent no.1 invited attention of
the court to the fact that the clients of Mr.Pandya have already
filed Special Civil Suit No.516/ 08 in the Court of the learned
Senior Civil Judge, Vadodara and incidentally this Court has already
issued directions to hear and decide that suit. In light of that the
request of the learned advocate Mr.Pandya to defer hearing of this
petition is declined.
11. Learned
advocate Mr.Dave for the petitioners relied upon a decision of the
Hon’ble the Apex Court in the matter of Chandrabhai K. Bhoir
and others Vs. Krishna Arjun Bhoir and others, reported in
2009 (1) GLH 675. The learned advocate relied upon para 17, which
reads as under:
A probate
when granted binds the whole world. It is a judgment in rem. The
Executor, therefore, has to administer the estate of the testator in
terms of the will and not on the basis of the settlement arrived at
by and between the parties which would be inconsistent with the terms
of the Will. In case of any conflict between the terms of the Will
and the settlement, the former will prevail. The court, thus, in
exercise of its jurisdiction under section 302 of the Act can enforce
only the terms of the will and not the terms of the agreement.
So
far as the proposition of law is concerned there cannot be any
dispute. But the question is as to whether this petition is required
to be entertained at the hands of the present petitioners, whose bona
fides as discussed hereinabove are not found to be clear.
In
response to the aforesaid submission made by the learned advocate for
the petitioners, learned senior advocate for respondent no.1 relied
upon the provision of sec.299 of the Succession Act, whereby an
appeal is required to be filed against the order of the learned
District Judge and the learned senior advocate submitted that in
light of that the present petition is not maintainable.
12. The
learned senior advocate for respondent no.1 relied upon a decision of
the Hon’ble the Apex Court in the matter of State of Uttar
Pradesh and another Vs. Pramod Kumar Shukla and another,
reported in (2008) 12 SCC 267. The learned senior advocate for
respondent no.1 relied upon the observations made by the Hon’ble
the Apex Court in paras 12, which read as under:
12. The High
Court seems to have completely lost sight of the nature of the
controversy and the dispute. Whether there was any fraud practised
could not have been decided in the Writ Petition. Under Section 7 of
the Cinema Act the power to revoke and cancel the license is
available to the appropriate authority. It appears that the High
Court has not examined the question as to what is the effect of
Girija’s death. It has also not examined the acceptability of the
claim of Pramod Kumar Shukla that he was the owner of the Cinema Hall
in which capacity he had applied for the permanent licence. These
have considerable bearing on the subject matter of dispute. The High
Court has come to an abrupt conclusion without analyzing the factual
and applicable legal position. That being so, we set aside the
impugned order of the High Court and remit the matter to it for fresh
disposal in accordance with law. We request the High Court to dispose
of the matter within 4 months from today.
13. The
learned senior advocate for respondent no.1 relied upon a proposition
of law laid down by the Hon’ble the Apex Court to the effect that,
‘when it is stated that fraud is perpetrated on the Court, it is
always required that the matter is tried in an appropriate forum
wherein the parties can lead necessary evidence and other party gets
an opportunity to cross examine so as to decide the veracity of the
evidence’. In that view of the matter the petition is found without
any substance. The conduct of the petitioners is self speaking about
their ill designs. It is the petitioners who approached this Court by
filing SCA No.20703/ 07 and after having obtained favourable order
therein and after having pocketed fruits flowing from that order they
have now thought fit to challenge the so called ‘consent’ by filing
the present petition and the reliefs are sought as set out
hereinabove. This shows that the petition deserves to be dismissed
with cost, but as stated hereinabove the Court restrains itself from
passing any order of cost.
14. The
petition is dismissed. Notice is discharged. Ad interim relief
granted earlier is vacated.
15. At
the request of Mr.A.J. Pandya, learned advocate it is clarified that
any observations made in this order shall not influence the court
below while the clients of Mr.Pandya pursue their suit. It is
expected that the same will be decided by the concerned Court in
accordance with law on its own merits.
(RAVI
R. TRIPATHI, J.)
karim
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