FRAUD
Querist :
Anonymous
(Querist) 29 April 2011
This query is : Resolved
KINDLY CAN ANY SUPPLY ME ALD 2004(4)77 POCHIREDDY VS RDO VIKARABAD AP
PALNITKAR V.V.
(Expert) 29 April 2011
Here is the case.
Equivalent citations: 2004 (3) ALT 414
Bench: A G Reddy
Pochi Reddy S/O. Ram Reddy vs The Revenue Divisonal Officer, Vikarabad Division,
The M.R.O., Pudur Mandal And Dhanraj Singh S/O. Raghunath Singh on 20/2/2004
ORDER
A. Gopal Reddy, J.
1. Petitioner by invoking the extraordinary jurisdiction seeks a Mandamus to
declare the order passed by the first respondent in proceedings No. C/1675/00
dated 6.9.2003 as illegal and arbitrary and violative of principles of natural
justice and to set aside the same. In fact the petitioner has to seek a writ of
Certiorari and not a Mandamus as prayed by him.
2. The petitioner who obtained an order for validating an unregistered sale deed
from the Mandal Revenue Officer by an order dated 25.1.1999 in file No.
B/3082/98 under Section 5-A of A.P. Rights in Land and Pattadar Pass Books Act
1971. Aggrieved by the same, the original landlord- 3rd respondent herein, from
whom the petitioner claims to be purchased, filed an appeal under Section 5-B
before the Revenue Divisional Officer, Vikarabad Division with an application to
condone the delay of 482 days under Section 5 of the Limitation Act by enclosing
a medical certificate issued from the doctor. Initially, the Revenue Divisional
Officer who condoned the delay by an order dated 10.12.2002. Aggrieved by the
same, the petitioner filed Writ Petition No. 25666 of 2002. The said Writ
Petition was allowed by this court on 11.3.2003 stating that the first
respondent being the appellate authority Under Section 5-B of the Act has to
exercise the discretionary power on the basis of the explanation offered and in
the light of the settled principles of law. Accordingly, the order was set aside
directing the first respondent to consider the matter afresh and pass
appropriate orders. On such remand, the first respondent issued notice to the
parties. Against which the petitioner filed an IA under Order 16 Rule 7 read
with 151 CPC for summoning the Doctor who issued a certificate in favour of the
third respondent for his alleged treatment to the third respondent and insisted
for summoning the said doctor for cross examining him. The Revenue Divisional
Officer after hearing the parties, by the impugned order dated 6.9.2003, refused
to summon the doctor for the reason that the circumstances explained by the
appellant for the delay caused in filing the appeal has been sufficiently
explained, more so, the petitioner who obtained the validation of sale deed on a
fictitious document and showing the third respondent pattadar as dead in fact it
is not so and accordingly refused to summon the doctor and directed the advocate
to make his submissions on the main appeal for which, the counsel refused to put
forward his arguments on the main appeal. After verifying the records, the
learned Revenue Divisional Officer allowed the appeal setting aside the order
passed by the Mandal Revenue Officer which order is now under challenge.
3. The learned counsel appearing for the petitioner vehemently contends that
unless the delay is properly explained by the third respondent for not filing
the appeal in time, the Revenue Divisional Officer committed an error in
allowing the application filed for condoning the delay on surmises and
conjectures. The reasons put forward by the Revenue Divisional Officer for
allowing the delay condonation petition and appeal is illegal and not
sustainable as per the judgment of the Supreme Court reported in SHAUQIN SINGH
VS. DESA SINGH1. He accordingly contends that unless the doctor who issued
certificate under whom the third respondent underwent treatment is examined, the
delay cannot be condoned, but the Revenue Divisional Officer not only condoned
the delay but also allowed the appeal, which suffers form incurable legal
infirmity and the same cannot be sustainable.
4. The first respondent who filed counter stating that the Mandal Revenue
Officer validated the unregistered sale deed without serving any notice on the
pattadar (third respondent) and the petitioner in his statement before the
Mandal Revenue Officer has stated that the pattadar has died due to ill health
and requested to issue transfer orders for transfer of title of the land in his
name in Revenue Records. Relying on the statement, the Mandal Revenue Officer,
Pudur Mandal, without following the procedure contemplated, validated the sale.
On the date of final hearing, the counsel for the respondent insisted that the
Doctor, who issued the medical certificate be summoned to this Court for
cross-examination. Since he satisfied with the circumstances explained by the
petitioner for the delay and no meaningful purpose would be served by summoning
the doctor for cross-examination, the request of the petitioner was turned down
and delay was condoned. Therefore, there is no illegality or impropriety in
passing the said order.
5. A perusal of the order passed clearly discloses that the Mandal Revenue
Officer issued notice in Form Nos. XI and XII, they were in fact issued to the
petitioner requiring him to attend the enquiry, which was certified by the then
Village Assistant, that the pattadar had died and there are no legal heirs.
Following the same, the then Mandal Revenue Officer had recorded the statement
of the petitioner along with two other witnesses produced by him and the
petitioner in his deposition confessed to the effect that he purchased the
subject land from the third respondent in the year 1984 through plain paper and
the third respondent who was ailing had died. In support of his plea he also
produced a certificate issued by the Sarpanch, Pudur to the effect that the
third respondent pattadar had died. Basing upon the said deposition and also the
certificate of the Mandal Revenue Officer validated the sale, therefore, the
same cannot be sustainable. Accordingly, he turned down the request of the
petitioner for summoning the doctor and also allowed the appeal filed by the
third respondent. In fact, the Supreme Court held that "A superior authority or
the High Court in a writ petition would, therefore, be entitled to consider
whether there was due satisfaction by the Chief Settlement Commissioner on
materials placed before him and that the order was made not arbitrarily,
capriciously or perversely". Only where such an order passed without having due
satisfaction on material placed, arbitrarily or perversely and without
considering the relevant evidence they are liable to be set aside.
6. I must say the circumstances, in the instant case, are glaring and the
intrinsic evidence available on the record in clinching, so much so, that no
other inference is possible except to hold that petitioner played fraud in
validating the unregistered sale from MRO under Section 5-A of the Act for the
following reasons:
(i) The petitioner does not deny that vendor of unregistered sale deed is very
much alive and filed the appeal.
(ii) The petitioner does not deny of his producing a certificate issued by the
Sarpanch, Pudur to the effect that third respondent-pattadar had died before
MRO.
(iii) The petitioner does not deny that he deposed before MRO and two other
witnesses on his behalf to substantiate that third respondent pattadar had dead.
(iv) The Notice in Form No. XI and XII in fact issued to the petitioner
requiring him to appear for enquiry which was certified by the Village
Assistant, that the pattadar had died and there are no legal heirs.
7. In S.P. CHANGALVARAYA NAIDU VS. JAGANNATH2 the Supreme Court held as follows:
" Fraud avoids all judicial acts, ecclesiastical or temporal' observed Chief
Justice Edward Coke of England about three centuries ago. It is the settled
preposition of law that a judgment or decree obtained by playing fraud on Court
is a nullity and non est in the eye of law. Such a judgment/decree by the first
court or by the highest court has to be treated as a nullity by every court
whether superior or inferior. It can be challenged in any court even in
collateral proceedings."
8. It is well settled that no order can be allowed to stand if obtained by fraud
(see. 1964.SC.72 Para 5) and fraud unravels everything. In view of the same, the
Revenue Divisional Officer rightly allowed the appeal and set aside the order
passed by the M.R.O, which do not suffer from incurable legal infirmities for
exercising extraordinary discretionary jurisdiction of this court under Article
226 of the Constitution of India.
9. The Writ Petition fails and it is accordingly dismissed at the stage of
admission. No costs
