Iqbal Bano vs Sahana & Others

Manoj K. Tiwari, J

Since common questions of fact and law are involved in these petitions, therefore, both the petitions are being heard and decided together by this common judgment.

Against the orders dated 06.02.2014 passed by Deputy Director of Consolidation in Revision No. 281 of 2012-13 and Revision No. 323 of 2012-13, petitioner moved applications seeking recall of the orders on the ground that she had not entered into any compromise with contesting respondent (revisionist therein) and she, therefore, submitted that the orders have been obtained by revisionist by playing fraud upon the court. The said applications were rejected by Deputy Director of Consolidation vide orders dated 14.06.2017. Thus, feeling aggrieved, petitioner has approached this Court challenging the orders dated 06.02.2014 and subsequent orders dated 14.06.2017 (passed in Revision No.281 of 2012-13 and Revision No. 323 of 2012-13, respectively).

Heard learned counsel for the parties and perused the record.

Learned Deputy Director of Consolidation has rejected petitioner's recall application on the sole ground that consolidation court has no power to review/recall its order. It is settled position in law that fraud vitiates every solemn act. Fraud and justice never dwell together. Every judicial/quasi judicial authority has inherent power to review/recall an order, which has been obtained by playing fraud. This aspect has been dealt with by Hon'ble Supreme Court in the case of Union of India & others Vs Ramesh Gandhi reported in (2012) 1 SCC 476. Para 25, 26 & 27 of the said judgment are extracted below:-

"25. This Court on more than one occasion held that fraud vitiates everything including judicial acts. In S.P. Chengal Varaya Naidu v. Jagannath, this Court observed as follows: (SCC p.2 para1)

"1. 'Fraud-avoids all judicial acts, ecclesiastical or temporal' observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and honest in the eyes 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."

(emphasis supplied)

Again in A.V. Papayya Sastry v. Government of A.P., this Court reviewed the law on this position and reiterated the principle. In paras 38 and 39 it was held as follows: (SCC pp.236-37)

"38. The matter can be looked at from a different angle as well. Suppose, a case is decided by a competent court of Law after hearing the parties and an order is passed in favour of the applicant plaintiff which is upheld by all the courts including the final Court. Let us also think of a case where this Court does not dismiss special leave petition but after granting leave decides the appeal finally by recording reasons. Such order can truly be said to be a judgment to which Article 141 of the Constitution applies. Likewise, the doctrine of merger also gets attracted. All orders passed by the courts/authorities below, therefore, merge in the judgment of this Court and after such judgment, it is not open to any party to the judgment to approach any court or authority to review, recall or reconsider the order.

The above principle, however, is subject to exception of fraud. Once it is established that the order was obtained by a successful party by practising or playing fraud, it is vitiated. Such order cannot be held legal, valid or in consonance with law. It is non- existent and non est and cannot be allowed to stand. This is the fundamental principle of law and needs no further elaboration. Therefore, it has been said that a judgment, decree or order obtained by fraud has to be treated as nullity, whether by the court of first instance or by the final court. And it has to be treated as nonest by every Court, superior or inferior." (emphasis supplied)

If a judgment obtained by playing fraud on the court is a nullity and is to be treated as non est by every Court superior or inferior, it would be strange logic to hear that an enquiry into the question whether a judgment was secured by playing fraud on the Court by not disclosing the necessary facts relevant for the adjudication of the controversy before the Court is impermissible. From the above judgments, it is clear that such an examination is permissible. Such a principle is required to be applied with greater emphasis in the realm of public law jurisdiction as the mischief resulting from such fraud has larger dimension affecting the larger public interest."

Since petitioner had sought review of the order dated 06.02.2014 on the ground that it was obtained by playing fraud upon Deputy Director of Consolidation, therefore, learned Deputy Director of Consolidation was not justified in summarily rejecting the applications as not maintainable. In view of the law laid down by Hon'ble Apex Court, learned Deputy Director of Consolidation was required to consider the review applications filed by the petitioner on merits and such an application could not have been summarily rejected as not maintainable.

In such view of the matter, both the writ petitions are partly allowed. Impugned orders dated 14.06.2017 is hereby set aside. Matter is remitted back to Deputy Director of Consolidation for reconsidering petitioner's recall applications on merit, in accordance with law, within a period of three months from the date of production of certified copy of this order.