w w w . L a w y e r S e r v i c e s . i n


P.S.G.Ganga Naidu & Sons Charities, Rep.by its Managing Trustee v/s The Special Commissioner & Commissioner-Land Reforms /Land Commissioner & Others

    W.P. NO.44989 OF 2002 AND W.P.M.P.NO.15983 OF 2003
    Decided On, 03 December 2010
    At, High Court of Judicature at Madras
    By, THE HONOURABLE MR. JUSTICE M.M. SUNDRESH
    For the Petitioner: Shri.V.Ayyadurai for Shri.R.Karthikeyan, Advocates. For the Respondents: R1 & 2, Shri.P. Muthukumar, Government Advocate, R4 & 8, Shri.Rajnish Pathiyil, R5, Shri.P.K.Rajagopal, R6, Shri.K.Doraisami for Srimathi Muthumani Durasami, Advocates, R7, Shri.T.R.Rajagopal, Senior Counsel.


Judgment Text
(PRAYER: Petition filed Under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified mandamus, calling for the records comprised in Proceedings No.D1/R.P.9/99(L.Ref.) on the file of the Land Commissioner / 1st respondent, Chepauk, Chennai ? 600 005 dated 10.03.2000 and to quash the same and consequently forbear the respondents 1 and 2 from initiating any proceedings in terms of the provisions of Tamil Nadu Land Reforms (FCL) Act, 1961.)


Considering the chequered history involved in the present writ petition, the factual matrix leading to the filing of the Writ Petition will have to be gone into for deciding the issues raised.


2.The petitioner herein is a Charitable Trust running a number of Educational Institutions. The petitioner Trust was created by a Deed dated 26.09.1947 which was registered as Document No.4943 of 1947 on 25.11.1947. The petitioner Trust was founded by late Shri.P.S.G.Ganga Naidu, the forefathers of the respondents 4 to 7 as well as the Managing Trustee of the petitioner Trust.


3.Two sons of Late Sri.P.S.G.Ganga Naidu by name Shri.G.Govindasamy and Shri.G.Varadaraj said to have given specific extent of lands belonging to them in favour of the petitioner Trust in the year 1960. A letter was also said to have been addressed by the Late Shri.G.Govindasamy in favour of the petitioner Trust on 14.01.1960 stating that the properties to an extent of 45.82 acres in Velankurichi Village, Coimbatore District, can be used by the petitioner Trust for grazing, raising, fodder crops etc. A resolution was said to have been passed by the petitioner Trust on 22.02.1960 accepting the alleged oral gift. The said resolution was also said to have been communicated to the Late Shri.G.Govindasamy.


4.Late Shri.G.Govindasamy and Shri.G.Varadaraj have claimed grant of permission under Section 27 of the Tamil Nadu Land Reforms (F.C.L) Act, 1961 (hereinafter called as "Act"). The said request was made on the ground that the lands have been used for grazing purpose. It is not in dispute that the said lands for which exemption was sought for are the subject matter of the present Writ Petition. The Tamil Nadu Land Board has rejected the request of the above said two persons on 22.08.1968 by holding that the lands having been used for raising commercial crops, the exemption cannot be granted.


5.Writ Petitions were filed jointly by both Late Shri.G.Govindasamy and Shri.G.Varadaraj in W.P.Nos.3880 and 3881 of 1968. The Writ Petitions filed by the above said persons were dismissed by this Court in and by its order dated 03.02.1970 by holding that the rejection of the application made by them for retaining the lands under Section 27 of the Act was just and proper. The Authorised Officer (Land Reforms), Coimbatore, in and by his proceedings dated 26.11.1974 excluded the lands which were the subject matter of the Writ Petitions from the holdings of Late Shri.G.Govindasamy and Shri.G.Varadaraj on the ground that they have been in possession and enjoyment of the petitioner Trust. Thereafter, the orders have been passed on the holdings of the petitioner Trust on 21.12.1974.


6.Late Shri.G.Govindasamy and Shri.G.Varadaraj gave letters of affirmation of Entrustment Deed on 15.07.1978 acknowledging the oral gift made by them earlier in favour of the petitioner Trust. A request was made by the petitioner Trust in the month of June, 1986 seeking permission to sell the lands including the lands which are the subject matter of the Writ Petition. On receipt of the said letter, the Authorised Officer had issued a notice under Section 20-A of the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961 to show cause as to why the penalty for future acquisition in contravention of the provisions of the Act cannot be imposed. Thereafter, the Assistant Commissioner (Land Reforms), namely, the respondent No.2 issued a notice of hearing.


7.A Writ Petition was filed in W.P.No.12838 of 1988 by the petitioner, seeking to quash the proceedings dated 24.06.1988. The Writ Petition was transferred to the Tamil Nadu Land Reforms Special Appellate Tribunal and numbered as T.R.P.No.439 of 1991. The Special Appellate Tribunal in and by its order dated 30.06.1994 has passed an order directing the petitioner Trust to give a reply to the show cause notice given under Section 20-A of the Act. The Tribunal had also observed that the action has been taken both under Section 20-A and 10(5) of the Act. The legal heirs of Late Shri.G.Varadaraj, cancelled the affirmation deed by a registered document on 17.07.1996. Similarly, the Late Shri.G.Govindasamy also cancelled the affirmation deed on 25.03.1992.


8.A suit was filed in O.S.No.112 of 1993 by the petitioner against the seventh respondent herein who is the wife of the Late Shri.G.Govindasamy seeking the relief of declaration and the consequential permanent injunction. The said suit was filed based upon the title on the alleged gift deed and adverse possession. The suit was decreed exparte on 28.09.1994 against which an application was filed to set aside and the same is pending disposal.


9.The respondent No.2 after considering the entire materials available on record was pleased to hold that some of the lands are not brought under cultivation, the legal heirs of the Late Shri.G.Govindasamy are in possession, mutations have been made in the revenue records including pattas and the affirmation deed has been cancelled. Similarly, reasons have been assigned in so far as the lands said to have been donated by Late Shri.G.Varadaraj is concerned. Accordingly, it was held that the transaction between the donors, namely Late Shri.G.Varadaraj and Shri.G.Govindasamy on the one hand and the petitioner on the other hand are binami transactions to defeat the provisions of the Act. As a consequence thereon, the lands were directed to be included in the holdings of the Late Govindaswamy and Shri.G.Varadaraj.


10.A revision was filed by the petitioner, challenging the said order of the respondent No.2 before the respondent No.1. The respondent No.1 in and by his proceedings in D1/R.P.No.9/99(L.Ref.) dated 10.03.2000 was pleased to dismiss the revision filed by the petitioner. While hearing the revision petition, the petitioner was not heard, as the petitioner's counsel was continuously absent for two occasions, even though he was intimated along with the documents. In fact the matter was adjourned to several dates. When it was taken up for hearing on 13.01.2000, a representation was made by the petitioner's counsel seeking adjournment by filing a memo. Thereafter, the matter was adjourned on two occasions. Even though the petitioner's counsel received the notice there was no representation. Therefore an order was passed on merits with the available materials. Challenging the said order, the present writ petition has been filed.


11.The order impugned has been passed on 10.03.2000. Even prior to the order impugned, the properties have been included in the holdings of the respondents 3 to 8. They offered alternative lands in Mayiladumparai and accordingly they have been taken as excess lands. The lands have been taken possession by the Tahsildar and distributed to the needy people. There was also a partition between the legal heirs of Late Shri.G.Varadaraj on 09.04.2001 including the properties involved in the Writ Petition which was followed by sub-division of lands. Thereafter, the present writ petition has been filed on 12.12.2002.


12.Submissions of the learned counsel for the petitioner:


12.1.Shri.V.Ayyadurai, learned counsel appearing for the petitioner submitted that the original owners of Late Shri.G.Govindasamy and Shri.G.Varadaraj gifted the lands in the year 1960. A letter was also given by Late Shri.G.Govindasamy dated 14.01.1960. A resolution was passed by the petitioner accepting the same and it was communicated to Late Shri.G.Govindasamy. In the proceedings dated 26.11.1974, the lands have been excluded from the holdings of Late Shri.G.Govindasamy and Shri.G.Varadaraj. The lands have been included in the holdings of the petitioner. The above said persons executed the affirmation of entrustment of trust property on 15.07.1978 by registered deeds. Therefore, it is not open to the respondents 3 to 8 to contend that there was no oral gift.


12.2.The proceedings dated 26.11.1974 have become final and the second respondent does not have any power or authority to review the same. Section 2 of the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961 came into force with effect from 01.03.1972. It also cannot be applied to an existing Trust. Section 3(19) speaks about the possession of land by the owner which includes the petitioner who enjoy the property as a owner. Section 15 of the Act which provides for power to rectify bonafide mistakes cannot be exercised. Section 20-A of the Act has got no application, since there is no future acquisition made by the petitioner.


12.3.The deed of confirmation entered into on 15.07.1978 travels back to the original gift. The decree obtained by the petitioner before the Civil Court not only binds the respondent No.7 but also the other respondents. The decree is a judgment in rem. The gift was given much prior to the coming into force of the Act and the order impugned passed by the respondent No.1 will have to be set aside in as much as sufficient opportunity has not been given to the petitioner. In support of his contention, the learned counsel has relied upon the judgment of the Honourable Supreme Court in A.G.VARADARAJULU v. STATE OF TAMIL NADU [(1998) 4 SCC 231] and submitted that what is required under Section 3(19) is an element of title. Therefore, the learned counsel submitted that the Writ Petition will have to be allowed.


13.Submissions of the respondents 1 and 2:


13.1.Shri.P.Muthukumar, learned Government Advocate appearing for the respondents submitted that the order impugned has been passed by the first respondent after affording number of opportunities to the petitioner. It is further submitted that the power has been correctly exercised by the respondents in as much as the holdings cannot be recognised based upon the oral gift. The factual findings given by the respondents shall not be disturbed by this Court while exercising the power under Article 226 of the Constitution of India. The consequences of a transfer contrary to the provision has been stipulated under Section 20-A of the Act itself. The subsequent development as alleged by the respondents could not be confirmed and in any case liberty may be given to the respondents 1 and 2 to proceed in accordance with law in pursuant to the impugned order.


14.Submissions of the respondents No.4 and 8:


14.1.Shri.Rajnish Pathiyil, learned counsel appearing for the respondents No.4 and 8 submitted that the respondents have got all the properties changed in the revenue records in pursuant to the proceedings under Section 10(5), 12 and 14 of the Act. The excess lands have been acquired and distributed to the needy persons. There was a partition between the family on 09.04.2001 by a registered deed. The properties have been subdivided thereafter on 24.06.2002. The Writ Petition has been filed after a period of two years and 8 months from the date of the order impugned. There is no explanation for the delay in filing the Writ Petition. The subsequent events will have to be taken into consideration while granting the relief sought for.


15.Submissions of the respondent No.5:


15.1.Shri.P.K.Rajagopal, learned counsel appearing for the respondent No.5 submitted that the action under Section 20-A of the Act is perfectly valid in as much as the mandate of Section 19 of the Act was not complied with. The petitioner himself made an application for the sale of land and therefore, it is not open to it to challenge the authority of the respondent No.2. No suit has been filed by the petitioner against the legal heirs of Late Shri.G.Varadaraj. The suit was filed and decreed exparte only against one of the legal representatives of the Late Shri.G.Govindasamy.


16.Submissions of the respondent No.6:


16.1.Shri.K.Doraisami, learned counsel appearing for the respondent No.6 submitted that there is no gift as alleged by the petitioner. Even assuming that there is a gift, the same is a void transaction in the teeth of the provisions contained in Section 14 and 17 of the Indian Registration Act, 1908 as well as the Section 123 of the Transfer of Property Act, 1882. The suit filed by the petitioner was only against the seventh respondent and not others. The deed of affirmation was later withdrawn by Late Shri.G.Govindasamy himself. The power has been exercised by the respondent No.2 under Section 20-A as well as Section 15 of the Act.


16.2.The proceedings which are the subject matter of the Writ Petition filed in W.P.No.3881 of 1968 would falsify the case of the petitioner. While construing the provisions of a social welfare legislation which aims at equitable distribution of lands, the Court should lean in favour of giving effect to the enactment. Section 15 of the Act which deals with bonafide mistakes gives ample powers to the respondent No.2 to take appropriate action. A construction which makes the provision otiose should be avoided. A mere quoting of a wrong provision would not vitiate the proceedings. The petitioner was given sufficient opportunities before the respondents. In support of his contention, the learned counsel has relied upon the judgment in AUTHORISED OFFICER v. S. NAGANATHA AYYAR [(1979) 3 SCC 466], LAND COMMISSIONER v. MANJIYA PILLAI [1994 SUPP(2) SCC 464], GOMTIBAI (DEAD) THROUGH LRs. AND OTHERS v. MATTULAL (DEAD) THROUGH LRS. [AIR 1997 SC 127], and GOVERNMENT OF UNION TERRITORY OF PONDICHERRY v. MOHAMMED HUSSAIN [(1994) 5 SCC 121] and submitted that the Writ Petition will have to be dismissed.


17.Submissions of the respondent No.7:


17.1.Shri.T.R.Rajagopal, learned senior counsel appearing for the respondent No.7 submitted that the suit filed by the petitioner was decreed exparte over which an application filed to set aside is pending, will not bar the authorities to function under the Act. Such a decree is a decision between the parties and not against the respondents 1 and 2. The plea of oral gift has been set up by the parties considering the factual situation prevailed at that point of time. There is no reference in the deed of affirmation about the letter dated 14.01.1960. There is no reference also in the proceedings of the respondent No.2 dated 26.11.1974. When a particular action done was outside the purview of the Act then the power is available to the authorities to rectify the same.


18.Heard Shri.V.Ayyadurai for Shri.R.Karthikeyan, learned counsel appearing for the petitioner, Shri.P.Muthukumar, learned Government Advocate, appearing for the respondents 1 and 2, Shri.Rajnish Pathiyil, learned counsel appearing for the respondents 4 and 8, Shri.P.K.Rajagopal, learned counsel appearing for the respondent No.5, Shri.K.Doraisami for Srimathi Muthumani Durasami, learned counsel for the respondent No.6 and Shri.T.R.Rajagopal, learned senior counsel appearing for the respondent No.7.


19.The facts involved as narrated above are not in dispute. It is the case of the petitioner that the oral gifts have been made by the original owners, namely Late Shri.G.Govindasamy and Shri.G.Varadaraj. Documents were also executed by the above said two persons in favour of the petitioner on 15.07.1978. However, it is to be seen that the above said two persons made an application under Section 27 of the Act, as its stood at the relevant point of time seeking retention of lands in excess of ceiling area. The application filed by them was rejected by the Tamil Nadu Land Board on 22.08.1968.


20.Challenging the same, separate Writ Petitions have been filed in W.P.Nos.3880 and 3881 of 1968. This Court in and by its order dated 03.02.1970 has dismissed the Writ Petitions by holding that the rejection orders passed by the Land Board denying the retention of lands were perfectly legal. The said fact would exemplify the position that atleast till the disposal of the Writ Petitions, Late Shri.G.Govindasamy and Shri.G.Varadaraj treated the property as one of their own. It also exemplifies the fact that the alleged oral gift was a make-believe arrangement between them and the petitioner in order to get over the rigours of the provisions of the Act.


21.It is further to be seen that a perusal of the letter dated 14.01.1960 said to have been given by the Late Shri.G.Govindasamy in favour of the petitioner would clearly show that what was given was a mere permission to utilise the land and not as a gift. Therefore, this Court is of the considered view that merely because arrangements have been made between the parties to get over the provisions of the Act, the same would not bind the respondents. It is pertinent to note that while filing the earlier Writ Petitions in the year 1968, no plea was taken by the deceased persons that the lands have been given as a gift in favour of the petitioner. Hence it is very clear that the arrangement is a make believe one.


22.Whether an oral or an unregistered gift is permissible in law:


22.1.Section 17 of the Registration Act, 1908 prescribes the transactions for which a registration is compulsory. Accordingly, an instrument of immovable property has to be registered. Section 49 of the Act speaks about the effect of non-registration of documents required to be registered. It clearly spells out that a gift deed which is required to be registered under Section 17 of the Act if not done so would not the affect the immovable property concerned. In other words, in the absence of any registration which is mandatorily required there is no transfer of title and the alleged transaction would be a nullity and void in the eye of law. Hence for a transfer of an immovable property by way of a gift a registered deed is necessary.


22.2.'Gift' has been defined under the Transfer of Property Act, 1882. Section 123 of the said Act prescribes that a transfer of gift must be effected by a registered instrument signed by the donor and attested by atleast two witnesses. In the present case on hand, there was neither a written document nor it was registered with attestation. Therefore, in such an eventuality the very plea of the petitioner would fall on the ground in as much as there is no transfer in the eye of law. In GOMTIBAI (DEAD) THROUGH LRs. AND OTHERS v. MATTULAL (DEAD) THROUGH LRS. [AIR 1997 SC 127], the Honourable Apex Court has observed as follows:


"4.Thus, it is seen that the gift of immovable property should be made only for transferring the right, title and interest by the donor to the donee by a registered instrument signed by or on behalf of the donor and must be attested by at least two witnesses. The pre-existing right, title and interest of donor thereby stand divested in the donee by operation of Section 17 of the Registration Act only when the gift deed is duly registered and thereafter the donor would lose title to the property. It must also be proved that the donee had accepted the property gifted over under the instrument. In this case, though the transfer of gift was acted upon by Kusturibai as per the correspondence and evidence on record, but, admittedly, there is no written instrument executed by the donor, namely, the plaintiff and the defendant in favour of their cousin sister Kusturibai and it was got attested by at least two witnesses and registered in accordance with the provisions of the Stamp Act and the Registration Act. In the absence of compliance of these formalities, at best what could be seen from the partition deed is that the original plaintiff and the defendant have expressed their intention to gift over the land to their cousin sister Kusturibai. As held earlier, in the absence of any registered instrument of gift and acceptance thereof by the donee, the said property could not be said to have been legally transferred in favour of their cousin sister; in other words, the gift is not complete in the eye of law. Therefore, the District Court has rightly set aside the decree of the trial court which was later confirmed by the High Court. We do not find any error of law warranting interference."


22.3.Hence on a consideration of the provisions contained in the Transfer of Property Act, 1882 read with the Registration Act, 1908 and applying the ratio laid down by the Honourable Apex Court the alleged transactions even assuming are true are void, ab initio, without the sanction of law.


23.Constructions of the provisions of the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961


23.1.A perusal of Section 2 of the Act would throw light on the fact that the provisions of the Act would not apply to the lands held by an existing public Trust. Section 2(1) clearly specifies the fact that the provisions would not apply only in a case where the lands are already held by an existing Trust at the time of coming into force of the Act. In other words, when an immovable property is purchased by a Trust after coming into force of the Act, then the provisions of the Act would apply. Therefore, the exemption was only for the properties held by the Trust and not acquired by the Trust after coming into force and the provisions. The contention of the learned counsel for the petitioner that in as much as Section 2 came into force only with effect from 01.03.1972 and hence it cannot be applied to the petitioner's case cannot be accepted for the reason that the transaction being void without the mandate of law the subsequent registration made on 15.07.1978 would amount to a new acquisition. Sub-Section 19 of Section 3 reads as follows:


"3(19)."to hold land", with its grammatical variations and cognate expressions, means to own land as owner or to possess or enjoy land as possessory mortgage or as tenant or as intermediary or in one or more of those capacities."


23.2.A reading of the above said Section would throw light on the fact that to hold land one has to be a owner, mortgage, tenant or intermediary or in one or more of those capacities. Considering the scope of the enactment a wider import cannot be given to give the benefit to any other person more so when the owner himself claims the title to the property in his holding and the title of the petitioner is denied. The contention of the learned counsel for the petitioner that in as much as the petitioner got a semblance of a title it has to be held that it comes under the definition of Section 3(19) cannot be accepted. The definition of the word hold or held has been considered by the Honourable Supreme Court in A.G.VARADARAJULU v. STATE OF TAMIL NADU [(1998) 4 SCC 231] wherein it has been held as under:


"26.The word ?hold? or ?held? in the context of land has come up for consideration in several cases before this Court. In State of U.P. v. Sarjoo Devi6 while dealing with the said word in Section 3(14) of the U.P. Zamindari Abolition and Land Reforms Act, 1950, as follows: (SCC p.8, paras 8 and 10)


?The word ?held? occurring in the above definition which is a past participle of the word ?hold? is of wide import. In the Unabridged Edition of The Random House Dictionary of the English Language, the word ?hold? has been inter alia stated to mean ?to have the ownership or use of; keep as one?s own?.


* * *


In Webster?s New Twentieth Century Dictionary (Second Edition), it is stated that in legal parlance the word ?held? means to possess by ?legal title?. Relying upon this connotation, this Court in Bhudan Singh v. Nabi Bux7 interpreted the word ?held? in Section 9 of U.P. Zamindari Abolition and Land Reforms Act, 1950 as meaning possession by legal title.? (emphasis supplied)


Again in State of A.P. v. Mohd. Ashrafuddin8 it was held as follows: (SCC p. 4, para 8)


?According to Oxford Dictionary ?held? means: to possess; to be the owner or holder or tenant of; keep possession of; occupy. Thus, ?held? connotes both ownership as well as possession. And in the context of the definition it is not possible to interpret the term ?held? only in the sense of possession.?


The word ?holds? was again interpreted in Hari Ram v. Babu Gokul Prasad9 where it occurs in Section 185(1) of the Madhya Pradesh Land Revenue Code, 1959. It was observed: (SCC p. 611, para 5)


?The word ?holds? is not a word of art. It has not been defined in the Act. It has to be understood in its ordinary normal meaning. According to Oxford English Dictionary, it means, to possess, to be owner or holder or tenant of. The meaning indicates that possession must be backed with some right or title.?


23.3.Therefore, the ratio laid down by the Honourable Supreme Court would makes it clear that a mere possession alone would not be sufficient and what is required is that the possession must be backed with some right or title. The words 'owner, mortgage, tenant and intermediary' will have to be read on the principle of ejusdem generis and there is no scope for giving any other interpretation to include all other persons who are in possession and in whatsoever manner. Hence, even assuming the petitioner is in possession, the petitioner would not fall within the definition of Section 3(19) of the Act. Therefore, this Court is of the view that the judgment relied upon by the learned counsel for the petitioner only supports the case of the respondents. Further Section 3(21) defines the word 'intermediary' which only mean that a person who acts in between as a broker, agent or negotiator, between the two parties, which is not the position of the petitioner in the present case.


23.4.Section 7 of the Act deals with ceiling on holding land, which is extracted hereunder:


"7.Ceiling on holding land.-On and from the date of the commencement of this Act, no person shall, except as otherwise provided in this Act, but subject to the provisions of Chapter VIII, be entitled to hold land in excess of the ceiling area:


Provided that while calculating the total extent of land held by any person, any extent in excess of the ceiling area and not exceeding half an acre in the case of wet land and one acre in the case of dry land shall, irrespective of the assessment of such land, be excluded."


23.5.The said Section is both restrictive and prohibitive in nature. While it restricts the right of a person concerned, it declares that no person shall subject to the exception, be entitled to hold land in excess of the ceiling area. Therefore, the object of the enactment is very clear that no person shall be allowed to have more lands than permissible under the Act. The Act has been enacted with the social objective of distributing the lands to the landless persons. It also provides fetters on the right to hold lands paving way for equitable distribution among the citizens.


23.6.Section 15 of the Act speaks about the power to rectify the bonafide mistakes. In a case where the Authorised Officer is satisfied that a bonafide mistake has been made, the Officer can make necessary corrections. The definition of word 'bonafide mistake' will have to be given a wider import to go into the merits of the case, when a mistake has been committed by the Authorised Officer believing the statement of the land holder to be true.


23.7.It is further to be seen that Section 50(9) of the Act also deals with a bonafide mistake. The Honourable Supreme Court in LAND COMMISSIONER v. MANJIYA PILLAI [1994 SUPP(2) SCC 464] while disagreeing with the judgment of this Court on the scope of Section 50(9) has held as follows:


"3.We have heard learned counsel for the parties, mainly on the question whether expression ?bona fide mistake? in Section 50(9) should be construed as confined to clerical or arithmetical mistakes only. Having regard to the provisions contained in Section 50(10) which expressly makes provision for correction of clerical or arithmetical mistakes, we are unable to construe the expression ?bona fide mistake? in sub-section (9) of Section 50 to mean that it is confined to clerical or arithmetical mistake. Such a construction would render the provisions of Section 50(9) otiose. In our opinion, it would be permissible for the competent authority to exercise the power conferred under Section 50(9) in cases where a bona fide mistake has been committed while passing orders on merits. We are, therefore, unable to agree with the view of the learned Single Judge as well as of the Division Bench of the High Court in this regard and the said view is, therefore, set aside. But having regard to the facts and circumstances of the present case, we are not inclined to interfere with the ultimate order that has been passed by the High Court. Hence, the appeal is dismissed."


23.8.Hence, considering the ratio laid down by the Honourable Supreme Court, this Court is of the view that the words mentioned under Section 50(9) of the Act relating to bonafide mistake would entitle the Authorised Officer to go into the merits of the case, more so, when the transaction itself is void ab initio.


23.9.Section 20-A deals with penalty for future acquisition in contravention of the provisions of the Act. The said Section can be divided into two parts for the purpose of a proper interpretation. It provides for a penalty in a case where an acquisition has been made in contravention of the provisions of the Act. It also provides that such an acquisition would be null and void. Therefore, Section 20-A mandate that it is incumbent on the Authorised Officer to come to the conclusion that a particular acquisition is null and void and on such a conclusion the penalty would thereafter arise in view of the deeming clause provided therein. In view of the said interpretation and applying the said interpretation to the facts of the case this Court is of the view that the order impugned is perfectly valid.


23.10.It is a well settled principle of law that in order to interpret a provision of welfare legislation which is meant for equitable distribution of land for common good to sub-serve the directive principles enshrined in the Constitution of India, the object of such legislation will have to be seen. In effect an interpretation which would defeat the purpose of the Act will have to be eschewed.


23.11.A provision cannot be read in isolation. A construction that would lead to absurdity and give raise to practical inconvenience by making a provision nugatory and otiose should be eschewed. While construing a provision contained in a statute, the statute must be read as a whole and understood in the context upon which it has been made.


23.12.The Division Bench of this Court in YAHOO! INC (FORMERLY 'OVERTURE SERVICE INC.') v. INTELLECTUAL PROPERTY APPELLATE BOARD [2010 (5) CTC 625] has held as follows:


"12.In a recent judgment in ZAMEER AHMED LATIFUR REHMAN SHEIKH v. STATE OF MAHARASHTRA [(2010) 5 SCC 246], the Hon'ble Apex Court has observed as follows:


"74. Before we proceed to analyse the provisions of the two statutes in order to ascertain whether they are repugnant or not, we may note that it is well settled that no provision or word in a statute is to be read in isolation. In fact, the statute has to be read as a whole and in its entirety. In RBI v. Peerless General Finance & Investment Co. Ltd. [(1987) 1 SCC 424], this Court while elaborating the said principle held as under: (SCC p.450, para 33)


"33. Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place."


13.In BANGALORE WATER SUPPLY v. A.RAJAPPA [AIR 1978 SC 548], the Hon'ble Apex Court has observed as follows:


"Perhaps with the passage of time, what may be described as the extension of a method resembling the "armatures rule" in the constitution of wills. Judges can more frankly step into the shoes of the legislature where an enactment leaves its own intentions in much too nebulous or uncertain a state."


14.In CHANDRA MOHAN v. STATE OF UTTAR PRADESH [1967 (1) SCR 77 (AIR 1966 SC 1987), the Hon'ble Apex Court has observed that:


"The fundamental rule of interpretation is that in construing the provisions of the Constitution or the Act of the Parliament, the Court "will have to find out the express intention from the words of the Constitution or the Act as the case may be ....." and eschew the construction which will lead to absurdity and give rise to practical inconvenience or make the provisions of the existing law nugatory."


15.JUSTICE FRANKIN IN GUISEPPI v. WALLING, 144F (2d) 608 (pp 620), has observed as follows:


"The necessary generality in the wordings of many statues, and ineptness of drafting in others frequently compels the Court, as best at they can, to fill in the gaps, an activity which no matter how one may label it, is in part legislative. Thus the Courts in their way, as administrators, in their way perform the task of supplementing statutes. In the case of Courts we call it "interpretation" or "filling the gaps" in the case of administrators we call it "delegation" or authority to supply the details."


23.13.Therefore, on a consideration of the relevant provisions, this Court is of the view that the Authorised Officer has exercised its power under Section 20-A read with Section 15 of the Act. As observed by the Tribunal action was also taken under Section 10(5) of the Act. It is also to be noted that admittedly the provision contained under Section 19 of the Act which mandates prior intimation to the Authorised Officer was also not complied with and in such an eventuality the Act specifically provides for an action under Section 20-A. Further as submitted by the learned senior counsel Shri.K.Doraisami appearing for the respondent No.6 what is sufficient is as to whether the authority has got the power to act or not.


24.Effect of the Civil Court Decree:-


24.1.Admittedly, the petitioner has obtained an exparte decree against the respondent No.7 and the application to set aside the same is pending. Even assuming the decree is final the same cannot be a bar for the respondents 1 and 2 to take action under the Act. It is further to be seen that for the reasons known to the petitioner the other respondents also were not made as parties. Hence this Court is of the view that the decree obtained by the petitioner has no bearing on the orders impugned.


25.Whether sufficient opportunity was given or not:


25.1.It is seen from the counter affidavit filed by the respondents 1 and 2 that the revision has been adjourned on several occasions. It was posted for hearing initially on 08.10.1999. Thereafter, it was adjourned to 29.10.1999, 15.11.1999, 08.12.1999, 13.01.2000, 04.02.2000, 29.02.2000 respectively. When the matter was taken up for hearing on 13.01.2000, the learned counsel appearing for the petitioner submitted a petition requesting for adjournment. The case was adjourned to 04.02.2000. In view of the absence of the petitioner it was adjourned to 29.02.2000 as a last chance. A notice to that effect was also sent to the learned counsel appearing for the petitioner. However, again on 29.02.2000 there was no representation and hence orders were passed on merits.


25.2.From the above said facts, it is clear that the petitioner was given sufficient opportunities to putforth its case. Moreover, there is absolutely no explanation that has been given for not present before the respondent No.1 during hearing. Hence, this Court is of the view that sufficient opportunities have been given to the petitioner by the respondent No.1.


26.Whether fraud would vitiate the proceedings:


26.1.It is a well settled principle of law that a fraud would vitiate the proceedings. An Act of fraud on the Court or the authorities has to be viewed seriously. A collusion or a conspiracy with a view to deprive the rights of the others would render a transaction void ab initio. Therefore, when due to the collusion and fraudulent act of the parties an authority was made to believe while passing an order such an order would become a nullity as well as a void one. When an order has been passed on a misrepresentation the party who got the order in his favour cannot be thereafter say when it was brought to light that such an order will have to be allowed to continue. The Honourable Supreme Court in a recent judgment in N.MEGHMALA v. G.NARASIMHA REDDY [(2010) 7 MLJ 693] has considered the entire issue and has held as follows:


"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. v. Jagannath (dead) by L.Rs. and Others AIR 1994 SC 853 : (1994) 1 SCC 1). In Lazarus Estate Ltd. v. Besalay 1956 All. 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 v. GAR Re-Rolling Mills and Another AIR 1994 SC 2151 : (1994) 2 SCC 647; and State of Maharashtra and Others v. Prabhu (1994) 2 SCC 481 : 1995-I-LLJ-622, 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 v. Shaw Brothers, AIR 1992 SC 1555 : (1992 (1) SCC 534, 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. v. Rajendra Singh and Others AIR 2000 SC 1165 : (2000) 3 SCC 581 : (2000) 2 MLJ 181, 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.


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 and Another v. M.Tripura Sundari Devi (1990) 3 SCC 655 : 1990-II-LLJ-153; Union of India and Others v. M.Bhaskaran AIR 1996 SC 686 : (1995) Suppl. 4 SCC 100 : 1996-I-LLJ-781; Vice Chairman, Kendriya Vidyalaya Sangathan and Another v. Girdharilal Yadav (2004) 6 SCC 325; State of Maharashtra v. Ravi Prakash Babulalsing Parmar AIR 2007 SC 295 : (2007) 1 SCC 80 : (2007) 7 MLJ 603; Himadri Chemicals Industries Ltd. v. Coal Tar Refining Company AIR 2007 SC 2798; and Mohammed Ibrahim and Others v. State of Bihar and Another (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 v. Delhi Administration AIR 1963 SC 1572; Indian Bank v. Satyam Fibres (India) Pvt. Ltd. AIR 1996 SC 2592 : (1996) 5 SCC 550; State of Andhra Pradesh v. T.Suryachandra Rao AIR 2005 SC 3110 : (2005) 6 SCC 149; K.D.Sharma v. Steel Authority of India Ltd. and Others (2008) 12 SCC 481; and Regional Manager, Central Bank of India v. Madhulika Guruprasad Dahir and Others (2008) 13 SCC 170 : 2009-I-LLJ-215).


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.Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by L.Rs. and Others (supra); Gowrishankar and Another v. Joshi Amba Shankar Family Trust and Others AIR 1996 SC 2202 : (1996) 3 SCC 310 : (1996) 2 MLJ 38; Ram Chandra Singh v. Savitri Devi and Others (2003) 8 SCC 319; Roshan Deen v. Preeti Lal AIR 2002 SC 33 : (2002) 1 SCC 100 : (2001) Supp MLJ 134 : 2002-I-LLJ-465; Ram Preeti Yadav v. U.P.Board of High School & Intermediate Education AIR 2003 SC 4628; and Ashok Leyland Ltd. v. State of Tamil Nadu and Another AIR 2004 SC 2836).


27.In Kinch v. 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 by 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."


26.2.Therefore, considering the fact that both the petitioner as well as the original owners have colluded and created the documents in order to escape from the clutches of the provisions of the Act an order obtained in pursuant to the same would not enure to the benefit of anyone of them. Hence, this Court is of the view that the reliance made by the petitioner on the proceedings of the second respondent dated 26.11.1974 and 21.12.1974 has no legal basis.


27.Effect of the orders passed by the Authorised Officer dated 26.11.1974 and 21.12.1974:-


27.1.An action of a competent officer of the State would bind the state only when it is lawful and in consonance with the enactment. When an order is obtained by a party on misrepresentation, the benefits given under the said order cannot be continued. When such an order is passed a duty is cast upon the authorities to correct the same to prevent the continuance of the illegality. In other words an order passed by an authority which he otherwise would not have passed would be a nullity having the effect of a jurisdictional error. In a case where but for the misrepresentation an order can never be passed by an authority then such an order is void ab initio outside his jurisdiction. Therefore, such an order would amount to a jurisdictional error.


27.2.Applying the above said principle of law to the present case on hand, it is clear that the Authorised Officer would not have passed the order but for the misrepresentation made by the petitioner as well as the original title holders. The Authorised Officer was made to believe that there was a valid transfer of title in the eye of law. When the alleged gift is in dispute and the same has not been done in the manner know to law resulting in a void or fraudulent transaction then the action of the Authorised Officer based upon them would also be a nullity. In other words if only the Authorised Officer came to know that the alleged transaction was one of a oral gift he would not have passed the orders dated 26.11.1974 and 21.12.1974. Therefore, the Authorised Officer did not have the jurisdiction to delete the lands from the holdings of the predecessors in title of the respondents and include the same to that of the petitioner.


27.3.It is further to be seen that an authority has to implement the directions of the State. The State has to act in accordance with law enacted by the Parliament, the law has to be in accordance with the constitutional mandate. Therefore if the officer concerned acts contrary to the same, then it is not only binding on the State but also becomes both void and a nullity. Admittedly in the present case on hand, the orders passed by the Authorised Officer are totally in contravention of the provisions of the Act which has been enacted with the social welfare objective of equitable distribution of land among the citizens.


27.4.In JAIPUR DEVELOPMENT AUTHORITY v. DAULAT MAL JAIN [(1997) 1 SCC 35] the Honourable Apex Court has observed as follows:


"11. ... In a democratic society governed by rule of law, power is conferred on the holder of the public office or the authority concerned by the Constitution by virtue of appointment. The holder of the office, therefore, gets opportunity to abuse or misuse the office. The politician who holds public office must perform public duties with the sense of purpose, and a sense of direction, under rules or sense of priorities. The purpose must be genuine in a free democratic society governed by the rule of law to further socio-economic democracy. The Executive Government should frame its policies to maintain the social order, stability, progress and morality. All actions of the Government are performed through/by individual persons in collective or joint or individual capacity. Therefore, they should morally be responsible for their actions.


12. ... The Government acts through its bureaucrats, who shape its social, economic and administrative policies to further the social stability and progress socially, economically and politically. Actions of the Government, should be accounted for social morality. Therefore, the actions of the individuals would reflect on the actions of the Government. The actions are intended to further the goals set down in the Constitution, the laws or administrative policy. The action would, therefore, bear necessary integral connection between the ?purpose? and the end object of public welfare and not personal gain. The action cannot be divorced from that of the individual actor. The end is something aimed at and only individuals can have and shape the aims to further the social, economic and political goals. The ministerial responsibility thereat comes into consideration. ...


13.All purposes or actions for which moral responsibility can be attached are actions performed by individual persons composing the department. All government actions, therefore, means actions performed by individual persons to further the objectives set down in the Constitution, the laws and the administrative policies to develop democratic traditions, social and economic democracy set down in the Preamble, Part III and Part IV of the Constitution. The intention behind the government actions and purposes is to further the public welfare and the national interest. Public good is synonymous with protection of the interests of the citizens as a territorial unit or nation as a whole. It also aims to further the public policies. The limitations of the policies are kept along with the public interest to prevent the exploitation or misuse or abuse of the office or the executive actions for personal gain or for illegal gratification."


27.5.Following the said judgment of the Honourable Apex Court it has been recently held in JAIPUR DEVELOPMENT AUTHORITY v. MAHESH SHARMA [(2010) 9 SCC 782] as follows:


"34.We may at this stage appropriately refer to the decision of this Court in Kiran Singh v. Chaman Paswan AIR 1954 SC 30. In the said case this Court has held that judgment passed by a court without jurisdiction is a nullity and such a judgment could be challenged even in execution or collateral proceedings. The Court at SCR p.121 at para 6 held thus: (AIR p.342, para 6)


"6. ... 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."


35.In State of J&K v. Sanahullah Mir (1980) 3 SCC 272 this Court dealing with a case regarding resumption of land at SCR pp.286-87 at para 9 held thus: (SCC p.276, para 9)


"9. ... On going through these documents it appears to us that under the influence of some high-ups a case was made out for payment of compensation to the respondent in respect of the land acquired 60 years ago by acquiring it again which naturally led to the determination of the market value of the land in or about the year 1955. The State exchequer cannot be made to suffer for such wanton and illegal actions of its officers. The land had been resumed long ago. It belonged to the State. The whole proceeding of land acquisition was a nullity. The award resulting therefrom was also ultra vires and a nullity. It mattered little whether the proceeding was taken as a result of the fraud or mistake or otherwise. We are accepting the findings of the courts below that the respondent had not practised any fraud nor was the land acquisition proceeding started as a result of any mistake of fact. It was either as a result of gross negligence or a deliberate act on the part of the officials at the instance of some high-ups to help the respondent. It is well settled that there is no question of any acquisition of the State's own land as was purported to be done in this case."


36.In view of the aforesaid decisions of this Court, it is crystal clear that the issuance of notifications under Sections 4 and 6 of the Act as also the award passed for acquisition of the land was a nullity and the subsequent action of the Government derequisitioning land by issuance of notification under Section 48 was just and proper as that was an action for rectification of the mistake. The subsequent Land Acquisition Officer was justified in refusing to refer to the Reference Court in view of the fact that the land was already a government land and was so described in the revenue record itself. The Land Acquisition Officer, who passed the award, committed an illegality by not only determining the compensation under the Land Acquisition Act but also directing for retention of the interim compensation paid under the Jagir Act and also in directing for allotment of a developed plot of land admeasuring 2500 sq yd.


37.Initiation of the acquisition proceedings as also the award passed by the said Land Acquisition Officer is a nullity in the eye of the law and void ab initio and therefore could be held so and set aside in a proceeding of this nature. We, therefore, hold that the directions for payment of compensation under the Rajasthan Land Acquisition Act to the predecessor-in-interest of Respondent 1 and subsequently to Respondent 1 are illegal and without jurisdiction as the award passed by the Land Acquisition Officer was only an offer which itself was a nullity. Payment made to the predecessor-in-interest of Respondent 1 and also to Respondent 1 as his successor is also held unwarranted as the said orders were passed considering them as the owners of the land and not as a trustee or manager. Therefore, the said orders directing for payment of compensation and withdrawal of the compensation by Respondent 1 are held to be illegal and without jurisdiction."


27.6.Hence, applying the ratio laid down by the Honourable Supreme Court, the earlier orders passed by the Authorised Officer based upon the misrepresentation would not confer any benefit on the petitioner.


28.Whether delay and subsequent events to be taken into consideration:

28.1.It is seen from the facts brought forth by the learned counsel appearing for the respondents 4, 5 and 8, the orders passed by the second respondent have been given effect to. Changes have been made in the revenue records. Surplus lands have been acquired and distributed by the authorities. There was a partition between the parties and thereafter lands have been subdivided. The parties are enjoying their respective shares.


28.2.The Writ Petition has been filed on 02.12.2002 challenging the order impugned dated 10.03.2000. There is no explanation for the delay in approaching this Court. The above said facts would indicate that the petitioner is not entitled to invoke the discretionary jurisdiction by this Court more so when the subsequent events have happened and the petitioner has allowed such events to complete. The Honourable Supreme Court in MOUMITA PODDAR v. INDIAN OIL CORPORATION LIMITED [(2010) 9 SCC 291] has observed as follows:


"44.The facts and circumstances of this case are not such where this Court would be reluctant to come to the aid of a selected candidate, against whom there are no allegations of manipulation or any undue favour having been shown to her. In our opinion, this is not a case of such an exceptional nature where equitable considerations would be impermissible. The peculiar facts of this case are such that it would be appropriate for the court to take into consideration the subsequent events, in order to do complete justice between the parties. In Kedar Nath v. Dhanraji Devi, (2004) 8 SCC 76, this Court delineated the circumstances in which the subsequent events could be taken into consideration in the peculiar facts and circumstances of a particular particular case. It was emphatically observed as follows: (SCC p.82, para 16)


"16.In our opinion, by not taking into account the subsequent event, the High Court has committed an error of law and also an error of jurisdiction. In our judgment, the law is well settled on the point, and it is this: the basic rule is that the rights of the parties should be determined on the basis of the date of institution of the suit or proceeding and the suit/action should be tried at all stages on the cause of action as it existed at the commencement of the suit/action. This, however, does not mean that events happening after institution of a suit/proceeding, cannot be considered at all. It is the power and duty of the court to consider changed circumstances. A court of law may take into account subsequent events inter alia in the following circumstances:


(i)the relief claimed originally has by reason of subsequent change of circumstances become inappropriate; or

(ii)it is necessary to take notice of subsequent events in order to shorten litigation; or

(iii)it is necessary to do so in order to do complete justice between the parties.

(Re.Shikharchand Jain v. Digamber Jain Praband Karini Sabha [(1974) 1 SCC 675] , SCC p.681, para 10.)"

In view of the above, we find that the course adopted by the Division Bench was appropriate, as well as being legally correct.


45.It appears to us that the learned Single Judge wrongly brushed aside the observations made by this Court in Rashpal Malhotra v. Satya Rajpur, (1987) 4 SCC 391 wherein it is observed as follows: (SCC pp.397-98, para 7)


"7.It has to be borne in mind that this is an appeal under Article 136 of the Constitution. This Court in Heavy Engg. Corpn. Ltd. v. K.Singh and Co. (1977) 2 SCC 515 expressed the opinion that although the powers of this Court were wide under Article 136 it could not be urged that because leave had been granted the court must always in every case deal with the merits even though it was satisfied that the ends of justice did not justify its interference in a given case. It is not as if, in an appeal with leave under Article 136, this Court was bound to decide the question if on facts at the later hearing the court felt that the ends of justice did not make it necessary to decide the point. Similarly in Baigana v. Collector of Consolidation (1978) 2 SCC 461 this Court expressed the view that this Court was more than a court of appeal. It exercises power only when there is supreme need. It is not the fifth court of appeal but the final court of the nation. Therefore, even if legal flaws might be electronically detected, we cannot interfere save manifest injustice or substantial question of public importance. ... It has to be borne in mind that this Court in exercising its power under Article 136 of the Constitution acts not only as a court of law but also as a court of equity and must subserve ultimately the cause of justice." (emphasis supplied)


These observations are fully applicable to the present case.


46.Again in Municipal Board, Pratabgarh v. Mahendra Singh Chawla (1982) 3 SCC 331, this Court observed as under: (SCC pp.335-37, para 6)


"6.What are the options before us. Obviously, as a logical corollary to our finding we have to interfere with the judgment of the High Court, because the view taken by it is not in conformity with the law. It is at this stage that Mr.Sanghi, learned counsel for the respondent invited us to consider the humanitarian aspect of the matter. The submission is that the jurisdiction of this Court under Article 136 of the Constitution is discretionary and, therefore, this Court is not bound to tilt at every approach found not in consonance or conformity with law but the interference may have a deleterious effect on the parties involved in the dispute. Laws cannot be interpreted and enforced divorced from their effect on human beings for whom the laws are meant. Undoubtedly, rule of law must prevail but as is often said, 'rule' of law must run akin to rule of life. And life of law is not logic but experience'. By pointing out the error which according to us crept into the High Court's judgment the legal position is restored and the rule of law has been ensured its pristine glory. Having performed that duty under Article 136, is it obligatory on this Court to take the matter to its logical end so that while the law will affirm its element of certainty, the equity may stand massacred. There comes in the element of discretion which this Court enjoys in exercise of its extraordinary jurisdiction under Article 136. In approaching the matter this way we are not charting a new course but follow the precedents of repute. In Punjab Beverages (P) Ltd. v. Suresh Chand (1978) 2 SCC 144, this Court held that the order of dismissal made by the appellant in that case in contravention of Section 33(2)(b) of the Industrial Disputes Act did not render the order void and inoperative, yet this Court did not set aside the order of the lower court directing payment of wages under Section 33(2)(c) and affirmed that part of the order. While recording this conclusion this Court observed that in exercise of the extraordinary jurisdiction this Court was not bound to set aside every order found not in conformity or in consonance with the law unless the justice of the case so requires. The Court further observed that demands of social justice are paramount while dealing with the industrial disputes and therefore, even though the lower court was not right in allowing the application of the respondent, the Court declined to exercise its overriding jurisdiction under Article 136 to set aside the order of the Labour Court directing the appellant to pay certain amount to the workers. Following this tren

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d in State of M.P. v. Ram Ratan 1980 Supp SCC 198, this Court while holding that the High Court was in error in directing reinstatement of the respondent in service, took note of the fact that by passage of time the respondent superannuated. The Court paid him back wages till the day of superannuation in the round sum of Rs.10,000. In other words, while formally setting aside the order of the High Court directing reinstatement, treated the respondent in that case in service and paid him back wages because physical reinstatement on account of passage of time was not possible. From the academic's point of view the later decision is the subject-matter of adverse comment but we feel reasonably certain that it stems from narrow constricted view of the jurisdiction of the Court under Article 136. We adhere to our view after meticulously examining the learned comment. Having noted that criticism, we still adhere to the view that legal formulations cannot be enforced divorced from the realities of the fact situation of the case. While administering law it is to be tempered with equity and if the equitable situation demands after setting right the legal formulations not to take it to the logical end, this Court would be failing in its duty if it does not notice equitable considerations and mould the final order in exercise of its extraordinary jurisdiction. Any other approach would render this Court a normal court of appeal which it is not." These observations leave no manner of doubt that the court would be failing in its duty if it does not take due notice of the equitable considerations and mould the relief to do complete justice between the parties. 47.The aforesaid observations were reiterated in Taherakhatoon v. Salambin Mohammad, (1999) 2 SCC 635 : (SCC p.643, para 19) "19.We may in this connection also refer to Municipal Board, Pratabgarh v. Mahendra Singh Chawla (1982) 3 SCC 331, wherein it was observed that in such cases, after declaring the correct legal position, this Court might still say that it would not exercise discretion to decide the case on merits and that it would decide on the basis of equitable considerations in the fact situation of the case and 'mound the final order'." (emphasis in original) 48.In our opinion, the facts and circumstances of this case are such that the approach adopted by the Division Bench, in taking note of the subsequent events, was appropriate and legally permissible. The clumsy handling of the entire selection process by Respondent 1 ought not to result in disqualification of Respondent 2 who was perhaps not properly guided. There are no allegations made that Respondent 2 has either manipulated the selection or that any undue favour has been shown to her by the Selection Committee. We also cannot ignore the fact that the candidates at Nos.2 and 3 of the panel have not challenged the selection and grant of dealership to Respondent 2. The appellant could also not get any relief, not being in the panel of selected candidates. It is also to be noted that the dealership has been operating for more than five years. It is stated to be one of the best, if not the topmost, outlet in the State. The entire infrastructure has been made available with the combined efforts of Respondent 1 and 2. Closure of the dealership, at this juncture, would result in disastrous consequences to Respondent 2." 28.3.Therefore by taking into consideration on the subsequent events and unexplanation delay on the part of the petitioner, the relief sought cannot be granted. 29.Whether the order impugned is liable to be set aside:- 29.1.It is a well settled principle of law that in a Writ of Certiorari, this Court cannot issue an order correcting all the errors even assuming there are technical violations of law when there is no equity in favour of the petitioner. Only when there is a patent error, a Writ of Certiorari can be ordered by the Writ Court. It is useful to refer the Division Bench of this Court in M/S.DIGIVISION ELECTRONICS LIMITED v. INDIAN BANK, CHENNAI [(2005) 3 MLJ 394] which is as follows: "46.Writ is a discretionary remedy, and hence this Court under Art.226 is not bound to interfere even if there is a technical violation of law, vide: R.Nanjappan v. The District Collector, Coimbatore, 2005 W.L.R. 47, Chandra Singh v. State of Rajasthan, J.T.(2003) 6 S.C.20, The Managing Director, Tamil Nadu State Transport Corporation (Madurai Division-IV) Limited, Dindigul v. P.Ellappan, (2005) 1 M.L.J. 639, Ramniklal N.Bhutta and another v. State of Maharashtra, (1997) 1 S.C.C. 134, etc. To obtain a writ the petitioner must not only show that the law is in his favour, he must also show that equity is in his favour. In these cases even assuming that there is some technical violation of law, there is no equity in the petitioners' favour. Hence, we are not inclined to exercise our discretion under Art.226 in these cases in favour of the petitioners who have borrowed money and do not wish to repay the same. We have been informed by Mr.V.T.Gopalan, learned senior counsel for some of the banks that about Rs.1,34,000 Crores of bank loans are outstanding in India and have not been repaid. In many cases, there have been interim orders of various Courts which have stayed the recoveries. Many of such interim orders were wholly unjustified, and passed only by adopting an over liberal approach. Unless repayment of the loan is done the bank or financial institution cannot grant a fresh loan, and hence new industries cannot be set up. Thus, by staying such recoveries incalculable harm has been done, and will continue to be done, to the economy, because persons who are genuinely in need of loans for setting up new industries cannot get such loans because the borrowers have not repaid them. This Court should certainly not countenance such grave malpractices." 29.2.Considering the above said ratio laid down by the Division Bench, this Court is of the opinion that it is a fit case where the jurisdiction of this Court under Article 226 of the Constitution of India need not be exercised in favour of the petitioner. 30.Conclusion:- Hence for the reasons stated above, the writ petition is liable to be dismissed and accordingly, the same is dismissed. However, it is open to the respondents 1 and 2 to act in accordance with law in pursuant to the impugned order to give effect to the same in the manner known to law. While dismissing the writ petition, it is also observed that the observation and findings rendered herein will not have a bearing in the pending suites filed by the respective parties. With the above observations, the Writ Petition is dismissed. No costs. Consequently, the connected miscellaneous petition is closed.
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