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SCA/1407/2011 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 1407 of 2011
=========================================================
KIRANKUMAR
PREMJIBHAI MAIVAIYA - Petitioner(s)
Versus
RAJESH
KESHAVLAL VISAPARMAR & 3 - Respondent(s)
=========================================================
Appearance
:
MR
KD VASAVADA for
Petitioner(s) : 1,
None for Respondent(s) : 1,3 - 4.
MR
ABHAYKUMAR P SHAH for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
Date
: 14/02/2011
ORAL
ORDER
1. The
petitioner is before this Court being aggrieved by judgment and order
dated 6.1.2011 passed below Appeal Application No.TEN/AK/1/2010
passed by learned Judge, Gujarat Revenue Tribunal at Annexure-A to
this petition. Besides, it is also prayed to quash and set aside the
impugned order and judgment dated 27.7.2010 passed below Application
No.36/15/2009 by learned Joint Charity Commissioner, Rajkot at
Annexure-B to this petition.
2. Heard
learned advocate Mr.H.D.Vasavada for the petitioner.
3. Learned
advocate for the petitioner invited attention of the Court to the
facts of the case from paragraph 3 of the said judgment and order.
The facts of the case are that the petitioner got an agreement to
sell executed in his favour from the trust on 21.1.2006. It was
agreed to sell the property of the trust which was in possession of
one Shri Kansara Popatbhai Jadavji as a tenant. It was agreed that
the property will be sold for amount of Rs.13,11,000/-. It is also
mentioned that out of that, Rs.3 lakhs were paid by the petitioner on
21.1.2006 in cash and remaining amount was agreed to be paid after
permission obtained from the concerned Government office and for
that, the date was fixed to be 21.5.2006. It is also recorded that
the amount paid by the petitioner of Rs.3 lakhs was paid by the trust
on 27.3.2006 to the tenant of the premises – Kansara Popatbhai
Jadavji for giving up his right as a tenant.
3.1 It
is further recorded in the order that thereafter there was change in
the ‘trustee board’ and the trust applied for ‘grant of permission to
sell this property’ before learned Joint Charity Commissioner on
6.1.2009. Learned Joint Charity Commissioner, Rajkot gave public
notice inviting tenders for sell of the property and also objections
on 15.4.2010. In response to this public notice, no offer was
received, but the petitioner filed his objections on 20.4.2010
wherein the petitioner brought to the notice of learned Joint Charity
Commissioner the factum of ‘agreement to sell’ having been executed
in his favour. In light of that, he registered his objections against
selling of this property to anybody else. He also requested that
according to that agreement to sell, the trust should be directed to
execute the sale deed in favour of the petitioner.
4. Learned
Joint Charity Commissioner, Rajkot by order dated 27.7.2010 permitted
the trust to sell this property for an amount of Rs.33,21,000/-.
5. This
order of learned Joint Charity Commissioner was challenged by way of
an appeal before the Honourable Gujarat Revenue Tribunal and the
Honourable Gujarat Revenue Tribunal, after considering rival
contentions of the parties, dismissed the appeal. This judgment and
order was pronounced in the open Court on 6.1.2011. The Honourable
Gujarat Revenue Tribunal was pleased to confirm the order passed by
learned Joint Charity Commissioner.
6. Certified
copy is produced at Annexure-A to this petition and it bears a rubber
stamp which shows that certified copy was applied on 10.1.2011, copy
was delivered on 13.1.2011 and the petitioner has approached this
Court on 2.2.2011. Respondent No.2 herein filed caveat on 12.1.2011.
Despite the fact that Honourable Gujarat Revenue Tribunal had not
granted any stay against its own judgment and order or for that
reason against the judgment and order of learned Joint Charity
Commissioner, learned advocate for the petitioner did not get this
matter heard and did not obtain any order. It was on 11.2.2011 that
matter was notified on regular admission. On that day, learned
advocate Mr.K.D.Vasavada had filed sick note and, therefore, the
matter was kept today. Learned advocate for respondent No.2 placed
for perusal a sale deed executed on 15.1.2011. In view of that,
present petition has become infructuous.
7. However,
learned advocate for the petitioner submitted that order stands
vitiated on account of fraud having been committed by the trust with
the petitioner and, therefore, the petition is required to be
entertained and relief as prayed for is required to be granted. In
support of his submission, learned advocate for the petitioner relied
upon a decision of the Honourable Apex Court in the matter of
A.V.Papayya Sastry and others Vs. Government of A.P. and
others,
reported in AIR 2007 SC 1546.
Learned advocate for the petitioner invited attention of the Court
to the Head Note ‘C’ of the said judgment wherein the observations
made by the Honourable Apex Court in paragraphs 38, 39 and 40 are
quoted. These observations read as under:
“All
orders passed by the Courts/authorities below merge in the judgment
of Supreme Court and after such judgment, it is not open to any party
to the judgment to approach any Court or authority to review, recall
or reconsider the order. The above principle, however, is subject to
exception of fraud. Once it is established that the order was
obtained by a successful party by practising or playing fraud, it is
vitiated. Such order cannot
be held legal, valid or in consonance with law. It is non-existent
and non est and cannot be allowed to stand. Therefore, it has been
said that a judgment, decree or order obtained by fraud has to be
treated as nullity, whether by the Court of first instance or by the
final Court. And it has to be treated as non est by every Court,
superior or inferior.
(Paras
38, 39)
Where
in proceeding for determination of surplus land it was pleaded by
landowners that possession of land was taken by beneficiary of land
acquisition proceedings in year 1972, and, therefore, it could not be
declared surplus land under Land Ceiling Act and, therefore,
authorities under Act declared land owners to be non-surplus
land-holders and writ petition and special leave petition against
same were also dismissed. However, it was subsequently found by the
High Court that earlier orders was obtained by exercising fraud by
land owners in collusion with officers of beneficiary, inasmuch as
possession as alleged by land owner was not taken over by beneficiary
as it was in possession of tenant, the order of High Court in
recalling its earlier order would be proper.
(Para
40)”
8. The
said decision of the Honourable the Apex Court will have no
application to the facts of the present case inasmuch as in the
present case, the petitioner has got an agreement to sell executed in
his favour from the Board of Trustees without any permission having
been obtained. It is settled law that trustees hold the property of
the trust not as their own and they cannot deal with the property
without obtaining necessary permission for the same. In the present
case, it is an admitted fact that earlier ‘Board of Trustees’ did not
obtain any permission before executing agreement to sell and,
therefore, that agreement to sell was non-est in eye of law and,
therefore, there is no question of any fraud having been committed on
the petitioner by anybody. If at all anybody is to be blamed, it is
the petitioner who wanted to grab the property of the trust by taking
the trustees in confidence. This fact can be seen from the
circumstances of the case. The property which was agreed to be
purchased by the petitioner for Rs.13,11,000/-, later on, came to be
sold for Rs.33,21,000/-. Not only that, if the sale deed was got
executed on 21.1.2006, what prevented the petitioner from taking
recourse to the remedy available under the law. The petitioner was
waiting for time to lapse so as to then plead that right of the
petitioner has ripen, but all these facts are sufficient to hold that
the Honourable Gujarat Revenue Tribunal or learned Joint Charity
Commissioner has not committed any error in passing the order
challenged in this petition. The petition is, therefore, dismissed.
(RAVI
R.TRIPATHI,J)
Refer
to the reporters.
(RAVI
R.TRIPATHI,J)
pathan
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