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Amratlal Manilal Modi Vs. Cachraji Dalaji and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtGujarat High Court
Decided On
Judge
Reported in(1967)8GLR429
AppellantAmratlal Manilal Modi
RespondentCachraji Dalaji and anr.
Cases ReferredManohar Lal v. Mohan Lal
Excerpt:
.....petition raises an interesting question as to the scope and ambit of the power of the agricultural lands tribunal to vacate an order made by it and to reopen the proceeding under section 32g of the bombay tenancy and agricultural lands act, 1948, (hereinafter referred to as the act) on the ground that its order was obtained by fraud practised upon it. 2. the first grievance of the petitioner was that the notice of the hearing of the application issued by the agricultural lands tribunal to the petitioner showed that the agricultural lands tribunal was proceeding to hold the inquiry under section 32g ignoring the order dated 29th january 1960 already made by it and this was clearly in excess of the jurisdiction vested in the agricultural lands tribunal. therefore, no power to review the..........petition raises an interesting question as to the scope and ambit of the power of the agricultural lands tribunal to vacate an order made by it and to reopen the proceeding under section 32g of the bombay tenancy and agricultural lands act, 1948, (hereinafter referred to as the act) on the ground that its order was obtained by fraud practised upon it. the facts giving rise to the petition are few and may be briefly stated as follows. the petitioner was the owner of certain lands bearing survey nos. 512, 515 and 516 situate in the sim of kathwada village, dascroi taluka, ahmedabad district. the first respondent was the tenant of the petitioner in respect of the said lands on the tillers' day, namely, 1st april 1957 and the first respondent accordingly became the deemed purchaser of the.....
Judgment:

P.N. Bhagwati, J.

1. This petition raises an interesting question as to the scope and ambit of the power of the Agricultural Lands Tribunal to vacate an order made by it and to reopen the proceeding under Section 32G of the Bombay Tenancy and Agricultural Lands Act, 1948, (hereinafter referred to as the Act) on the ground that its order was obtained by fraud practised upon it. The facts giving rise to the petition are few and may be briefly stated as follows. The petitioner was the owner of certain lands bearing Survey Nos. 512, 515 and 516 situate in the Sim of Kathwada Village, Dascroi Taluka, Ahmedabad District. The first respondent was the tenant of the petitioner in respect of the said lands on the tillers' day, namely, 1st April 1957 and the first respondent accordingly became the deemed purchaser of the said lands under Section 32 of the Act. Proceedings were thereafter commenced under Section 32G for determination of the purchase price of the said lands. The Agricultural Lands Tribunal constituted for Dascroi Taluka caused to be published a public notice in Form No. 8 prescribed under Rule 17 of the Rules made under the Act and the public notice was published in the village by beat of drum and also by affixing a copy in the Chavdi of the village. Individual notices were also issued by the Agricultural Lands Tribunal to the petitioner and the first respondent. The individual notice addressed to the petitioner was received by him and so far as the individual notice addressed to the first respondent was concerned, it was received by one Ataji Punjaji, a cousin of the first respondent who put his thumb impression i token of his having received the same. On the date specified in the notice the petitioner appeared before the Agricultural Lands Tribunal and so did a person who described himself as the first respondent. The Agricultural Lands Tribunal recorded the statement of the person claiming to be the first respondent and in that statement the person claiming to be the first respondent stated that he knew that as a tenant he had a right to purchase the said lands and he could pay the purchase price in instalments on interest at 4 1/2 per cent per annum and if he did not purchase the said lands, his tenancy would be liable to be terminated and he would be evicted from the said lands, but even so he did not wish to purchase the said lands. This statement was signed by the person describing himself as the first respondent by affixing his thumb impression at the foot of the statement. On the basis of this statement and relying upon it, the Agricultural Lands Tribunal by an order dated 29th January 1960 declared the purchase of the said lands to be ineffective and directed that necessary action for disposal of the said lands be taken under Section 32P of the Act. Pursuant to the direction of the Agricultural Lands Tribunal, the Mamlatdar initiated proceedings under Section 32P and by an order dated 21st July 1962 made under Clause (a) of Sub-section (2) of Section 32P, terminated the tenancy of the first respondent and directed the first respondent to hand over possession of the said lands to the petitioner for his personal cultivation. In the meantime, on 15th May 1962, the first respondent made an application to the Agricultural Lands Tribunal stating that he had not received any notice under Section 32G nor did he appear before the Agricultural Lands Tribunal or make any statement before it and if any person describing himself as the first respondent made any statement before the Agricultural Lands Tribunal, it was not binding on him and praying that under the circumstances, since he was willing to purchase the said lands, he should be declared to be the purchaser and the purchase price should be determined. Though the application did not in terms seek to vacate the order dated 29th January 1960, the application was in substance and effect an application for that relief since it was obvious that unless the order dated 29th January 1960 was vacated and the proceeding under Section 32G reopened, the Agricultural Lands Tribunal could not declare the first respondent to have purchased the said lands and determine the purchase price. Notice of the application was issued to the petitioner and in response to the notice, the petitioner appeared before the Agricultural Lands Tribunal. The petitioner raised a preliminary contention that the Agricultural Lands Tribunal had no power to review or vacate an order made by it and the application of the first respondent was, therefore, misconceived. The Agricultural Lands Tribunal was not prepared to accept this contention and the petitioner, therefore, approached the Collector but the Collector also took the same view and refused to stop the enquiry which was being made by the Agricultural Lands Tribunal. The petitioner, therefore, preferred the present petition challenging the jurisdiction of the Agricultural Lands Tribunal to entertain the application of the first respondent and to hold an inquiry for the purpose of deciding whether the relief prayed for in the application should be granted to the first respondent.

2. The first grievance of the petitioner was that the notice of the hearing of the application issued by the Agricultural Lands Tribunal to the petitioner showed that the Agricultural Lands Tribunal was proceeding to hold the inquiry under Section 32G ignoring the order dated 29th January 1960 already made by it and this was clearly in excess of the jurisdiction vested in the Agricultural Lands Tribunal. The petitioner urged that so long as the order dated 29th January 1960 stood unvacated, it was not competent to the Agricultural Lands Tribunal to hold proceedings afresh under Section 32G and to determine the purchase price on the basis that the first respondent was willing to purchase the said lands. This proposition was not disputed on behalf of the first respondent since it is elementary that once a proceeding is disposed of by an order made by a Tribunal, the Tribunal cannot proceed to rehear the proceeding so long as the order stands and is not vacated or set aside. But the first respondent contended that what the Agricultural Lands Tribunal was proceeding to do was not to rehear the proceeding under Section 32G ignoring the order dated 29th January 1960 but to inquire into the allegations of the first respondent in the application for the purpose of deciding whether the order dated 29th January 1960 should be vacated and the proceeding under Section 32G should be reopened and this was an inquiry which was within the competence of the Agricultural Lands Tribunal to hold. Now there can be no doubt and this is evident from the order of the Collector refusing to interfere with the inquiry of the Agricultural Lands Tribunal as also from the evidence which has already been recorded at the inquiry that the inquiry at the present stage is only for the purpose of ascertaining whether the allegations made by the first respondent in the application are correct and if correct, they have the effect of vitiating the order dated 29th January 1960 so as to render it liable to be set aside. The Agricultural Lands Tribunal is not at present proceeding to rehear the proceeding under Section 32G nor is it proceeding to determine the purchase price on the basis that the first respondent is willing to purchase the said lands. It would be only if the order dated 29th January I960 is vacated as a result of the inquiry which is being held at present by the Agricultural Lands Tribunal and the proceeding under Section 32G is revived, that the Agricultural Lands Tribunal would proceed to rehear the proceeding under Section 32G and determine the purchase price if the first respondent then expresses his willingness to purchase the said lands. The apprehension of the petitioner is, therefore, unjustified and the complaint made on the basis of such apprehension must be rejected.

3. The petitioner then contended that even if this was the limited scope of the inquiry which was being held by the Agricultural Lands Tribunal, such inquiry was beyond the jurisdiction of the Agricultural Lands Tribunal. He urged that the Agricultural Lands Tribunal had no jurisdiction to hold the inquiry since the inquiry was for the purpose of reviewing the order dated 29th January 1960 and the Agricultural Lands Tribunal had no power to review or vacate an order made by it. A power of review, he submitted, is a power which must be conferred on a Tribunal by statute and unless such power is conferred, a Tribunal has no inherent power to review its own decision. There was in the present Act, he said, no provision which expressly or by necessary intendment empowered the Agricultural Lands Tribunal to review an order made by it except in the limited class of cases specified in the proviso to Sub-section (3) of Section 32G and the Agricultural Lands Tribunal had. therefore, no power to review the order dated 29th January 1960 and to vacate it in exercise of the power of review even if the allegations made in the application of the first respondent were well-founded. The only remedy of the first respondent was either to appeal against the order dated 29th January 1960 to the Collector under Section 74(mb) or to move the Collector to exercise his revisional powers under Section 76A and since neither of these remedies was pursued by the first respondent within the time prescribed by the respective sections, the order dated 29th January 1960 had become final and the application of the first respondent for vacating the said order was misconceived and not maintainable. Now the petitioner is certainly right when he says that a Tribunal has no inherent power to review its own decision and that if a Tribunal is to have a power of review, such power must be found in some provision of a statute. The power of review may be conferred expressly or even by necessary implication but there must be some provision of a statute which confers it and if no provision of a statute can be found for supporting the power of review, a Tribunal cannot claim to review its own decision in exercise of any inherent power. The petitioner is also right when he says that there is nothing in the present Act which expressly or by necessary implication confers a power of review on the Agricultural Lands Tribunal. Section 67 provides for the constitution of the Agricultural Lands Tribunal and Section 68 defines the area of its jurisdiction by specifying the matters in respect of which it is given jurisdiction. What are the powers which the Agricultural Lands Tribunal should have in making inquires in the exercise of its jurisdiction under Section 68 is provided in Section 69. Sub-section (1) of Section 69 confers on the Agricultural Lands Tribunal the same powers in making inquiries as are vested in Court in respect of certain procedural matters under the Code of Civil procedure and the power of review is not one of them, Sub-section (2) of Section 69 of course provides that the Agricultural Lands Tribunal shall have also other powers as may be prescribed by Rules made under the Act but no such additional powers seem to have been conferred on the Agricultural Lands Tribunal by any rules made under the Act. These are the only sections of the Act which deal with the jurisdiction and powers of the Agricultural Lands Tribunal and it is, therefore, clear that the Agricultural Lands Tribunal has no power to review its own decision. The Agricultural Lands Tribunal cannot in the exercise of a general power of review rescind, alter or modify an order made by it. But this conclusion does not help the petitioner for the power which the Agricultural Lands Tribunal is called upon to exercise in the present case is not a power of review generally but a power to vacate an order made by it on the ground that it has been obtained by fraud practised upon it. The allegations of the first respondent in the application are that notice of the proceeding under Section 32G was not received by him and he did not appear at the hearing of the inquiry nor did he make any statement before the Agricultural Lands Tribunal and the statement alleged to have been made by him on the strength of which the Agricultural Lands Tribunal made the order dated 29th January 1960 was not made by him but was made by some one else falsely impersonating him and a fraud was, therefore, perpetrated on the Agricultural Lands Tribunal and the Agricultural Lands Tribunal should vacate the order dated 29th January 1960 which was passed as a result of such fraud. The power of the Agricultural Lands Tribunal which is thus invoked is the inherent power to vacate an order made by it on the ground that the order was obtained by means of fraud committed upon it. The question is whether the Agricultural Lands Tribunal possesses such inherent power. The petitioner disputed the existence of such inherent power in the Agriculture Lands Tribunal and he pointed out that there was no provision in the At which conferred such inherent power on the Agricultural Lands Tribunal and in the absence of statutory provision conferring such inherent power on the Agricultural Lands Tribunal, the Court would not be justified in reading such inherent power in the Agricultural Lands Tribunal. This contention is clearly unfounded for it ignores the fundamental principle that every court or tribunal which is entrusted with the solemn duty of doing justice between the parties has an inherent right to call back its proceeding where it finds that a fraud has been practised upon it. There is in such a case no question of review of an order made by it, When the court or tribunal vacates an order on the ground that it has been obtained through fraud practised upon it, it corrects its own proceeding and sets at naught an attempt to subvert the ends of justice. This inherent power every court or tribunal must possess for otherwise it will not be able to effectually discharge the function for which it is constituted, namely, administration of justice between the parties.

4. This position is now settled beyond doubt and authorities abound where this inherent power of the court or tribunal is recognised. As far back as the year 1910 it was held by a Division Bench of the Bombay High Court in Basangowda v. Churchigiri Gowda 34 Bom. 408, that it is the inherent power of every Court to correct its own proceeding where it finds that a fraud has been committed on it. In that case a compromise was presented which was signed by the defendants' pleader who was not specially authorized in that behalf. The Court passed a decree in terms of the compromise. The defendant then applied to the Court to set aside the decree on the ground that he had not authorized the pleader to compromise the suit. The Court finding that the compromise was signed by a pleader who was not even engaged by the party for whom he had purported to sign the compromise, set aside the decree in the exercise of its inherent power to correct its own proceeding where it finds it has been misled. The Court negatived the argument urged on behalf of the plaintiff that the Court had no power to set aside the decree since there was no section in the Code of Civil Procedure which entitled a party in the situation in which the defendant was, to ask the Court to reopen the suit and set aside the decree in a summary manner. Chandavarkar J. speaking on behalf of the Court observed:

What the defendant says is that there was a suit against him, and that the suit was declared to have ended by reason of a decree passed with his consent. He never consented, and the result has been that there has been fraud committed upon the Court. The Court was persuaded to sign a decree to which the defendant had never consented, and that upon the representation that he had consented to it. Therefore, once the Court is asked to go back upon its own procedure, it is not a question whether there is any section in the Civil Procedure Code to warrant the action of the Court amending its proceedings. It is an inherent power of every Court to correct its own proceedings where it has been misled.

This decision was followed by the Calcutta High Court in Peary Choudhary v. Sonvory Dass A.I.R. 1915 Calcutta 622 and the Calcutta High Court even went a little further and observed that it has not only power but it is its duty to set aside a decree obtained by fraud practised upon the Court, when it is apprised of it. The Patna High Court also took the same view in Sheosagar Singh v. Sitaram Kumhar : AIR1952Pat48 , where C. P. Sinha J. observed that in a case where a fraud has been perpetrated on the Court, the Court in the exercise of its inherent power is not only entitled but must set aside any order which may have been passed as a result of such fraud. My attention was also drawn to a decision of the Punjab High Court in Manohar Lal v. Mohan Lal where there is a reference to an unreported decision of that Court in Civil Revision No. 442 of 1951 in which it has been held that 'any tribunal or appellate authority has inherent power to set aside and review an order obtained by fraud and one which the Tribunal passing it could not possibly have passed if the true facts had been brought to his notice.' In view of these authorities it was not possible for the petitioner to deny the existence of inherent power in the Court to vacate an order obtained by means of fraud practised upon it, but the only distinction which was sought to be made by the petitioner was that these authorities referred only to the inherent power of the Court and did not have any bearing on the question whether a quasi judicial Tribunal like the Agricultural Lands Tribunal has such inherent power. Now it is no doubt true that these authorities were concerned with the question of existence of inherent power in a Court but the principle which they laid down is a principle which must apply equally to a case of a quasi judicial tribunal. The reason behind the principle is not peculiar to a Court and applies with equal force to a quasi-judicial tribunal. If a Court needs an inherent power to prevent subversion of the ends of justice, equally a quasi-judicial tribunal which is entrusted with the task of doing justice between the parties needs such inherent power. It is a power which is inherent in every court or tribunal which is entrusted with the solemn duty of doing justice between the parties and in exercise of that inherent power the court or tribunal can vacate an order made by it where it finds that a fraud has been practised upon it or it has been misled.

5. It must, therefore, be held that the Agricultural Lands Tribunal has power to vacate the order dated 29th January 1960 if it finds that the said order has been obtained by means of fraud practised upon it. Now there can be no doubt that if in fact the first respondent did not appear at the hearing of the inquiry and did not make a statement before the Agricultural Lands Tribunal but someone else falsely and without his knowledge impersonated him and gave a statement on the strength of which the Agricultural Lands Tribunal made the order dated 29th January 1960, a fraud was perpetrated on the Agricultural Lands Tribunal and an inquiry for the purpose of ascertaining whether such fraud was perpetrated or not would clearly be within the jurisdiction of the Agricultural Lands Tribunal. If the Agricultural Lands Tribunal finds that a fraud was perpetrated upon it and the order dated 29th January 1960 would not have been made by it but for such fraud, the Agricultural Lands Tribunal can vacate the said order and proceed to rehear the proceeding under Section 32G.

6. The petitioner can of course contend before the Agricultural Lands Tribunal that even if a fraud was committed by reason of someone else falsely impersonating the first respondent and giving a statement in the name of the first respondent, the order dated 29th January 1960 should still not be set aside for it can be sustained on the ground that the first respondent failed to appear on the date specified in the notice and the order dated 29th January 1960 would, therefore, have been passed in any event even if no such fraud had been committed. It will be for the Agricultural Lands Tribunal to consider in the light of the evidence before it and in the light of this contention and other contentions which may be advanced by the parties whether the order dated 29th January 1960 should be vacated and the proceeding under Section 32G should be reopened.

7. These were the only contentions urged before me and since there is no substance in them, the petition fails and the rule is discharged with costs.


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