Rajesh Agarwal vs Divisional Commissioner and Others

Veerender Singh Siradhana, J.�The intra-court appeals are directed against the judgment and order passed by the learned Single Judge dated 20th December, 2011, sustaining the challenge to the legality, validity and correctness of the impugned order dated 29th December, 2008, passed by the Divisional Commissioner, Jaipur, who while entertaining an appeal, interfered with the order dated 31st October, 2008, of the Authorized Officer (Land Resumption) & Land Acquisition Officer, U.I.T., Alwar, passed in exercise of powers under Section 90B(7) of the Rajasthan Land Revenue Act, 1956; (hereinafter referred to as the ''Act of 1956'', for short), setting aside the order dated 31st October, 2008, for a decision afresh.

Since the intra-court appeals are against the same judgment and order impugned therein, therefore, are being adjudicated upon by this common order.

Briefly outlined, the essential material facts and particulars necessary for appreciation of the controversy needs to be first noticed. M/s. Omway Buildestate Pvt. Ltd. and one Shri Ghanshyam instituted writ proceedings, assailing the legality, validity and correctness of the order dated 29th December, 2008, and with a prayer to uphold the order dated 31st October, 2008, passed by the Authorized Officer with reference to the agricultural lands situated in Village Bailaka Diwakri in Alwar District. The land in dispute was sought to be acquired by the State Government in view of resolution number 23 of the Urban Improvement Trust, Alwar (U.I.T.), proposing to set up a residential colony to be known as ''Rohini Nagar''. As a sequel, notification under Section 4(1) of the Land Acquisition Act, 1894; (hereinafter referred to as the ''Act of 1894'', for short), was issued on 25th July, 1995 and having considered the objections of the land owners/interested persons under Section 5A; a declaration under Section 6 of the Act of 1894, was published by notification dated 20th January, 1997, ultimately culminating into an award under Section 11 of the Act of 1894, on 25th June, 1998. However, neither possession was taken nor any compensation was offered or paid to the land owners (predecessors-in-interest) or to the writ petitioners. Be that as it may, on 10th August, 2000, the U.I.T., Alwar, decided to de-acquire the land in dispute keeping in view the availability of other land with the U.I.T., and owing to slow speed of disposal of the land, non-availability of funds for compensation to be paid and its poor financial conditions. A letter/communication dated 12th April, 2001, was addressed by the Director, NCR & Secretary, U.I.T., Alwar, to the State Government to de-acquire the land in dispute followed by a reminder on 29th August, 2001. For reaffirming the policy decision to de-acquire the land in dispute, a notice dated 16th October, 2004, was also published in the newspapers inviting objections from the persons interested. The process was followed by a notification under Section 48 of the Act of 1894, published in the gazette on 1st December, 2006; de-acquiring the land in dispute. During the process aforesaid, the writ petitioners purchased the land in dispute through registered sale deed(s) on 22nd March, 2006 and 10th November, 2006, from various khatedars/land owners. Subsequent to de-acquisition of the land vide notification dated 1st December, 2006, the writ petitioners; Ghanshyam and M/s. Omway Buildestate Pvt. Ltd., made applications on 9th March, 2007, under Section 90B(3) of the Act of 1956 in respect of 3.45 hectares and 9.37 hectares respectively, for development of residential township in their joint venture. In sequel of the applications under Section 90B(3) of the writ petitioners, notices were published on 30th March, 2007, in daily newspaper i.e., ''Rajasthan Patrika'', inviting objections. Both the applications under Section 90B(3) of the Act of 1894, were allowed by the Authorized Officer, considering the objections of the interested persons vide order dated 14th June, 2007, and the land in dispute was mutated in the name of U.I.T., Alwar, on 19th June, 2007, followed by approval of layout plan by the U.I.T. along with road network plan as well.

Rajesh Agarwal (appellant herein), one of the applicants and allegedly interested person, having raised the objections before the Authorized Officer, aggrieved of the order dated 14th June, 2007, filed an appeal under Section 90B(7) of the Act of 1956, before the Divisional Commissioner, Jaipur. As a consequence thereof, the order dated 14th June, 2007, was set aside and the matter was remanded back to the Authorized Officer for decision afresh in the light of what was observed by the Appellate Authority vide order dated 21st August, 2007.

The appellant did not appear before the Authorized Officer and ultimately, a notice was published in the daily newspaper on 18th February, 2008, followed by ex-parte proceedings against him. However, the order initiating ex-parte proceedings was recalled at one stage. M/s. Omway Buildestate Pvt. Ltd. filed Civil Writ Petition Number 4599 of 2008, since the matter was not being proceeded with the Authorized Officer. Vide order dated 26th May, 2008, this Court directed the Authorized Officer to dispose of the matter within the time frame. Ghanshyam (respondent/writ petitioner) stated that Rajesh Agarwal and one Suresh Mangla, were hand-in-glove to raise objections in the process at the instance of M/s. Ozone Builders & Developers Pvt. Ltd., wherein Praveen Mangla was its Director, who at one point of time collaborated with M/s. Omway Buildestate Pvt. Ltd. in respect of the present project. The dispute between M/s. Omway Buildestate Pvt. Ltd. and M/s. Ozone Builders & Developers Pvt. Ltd., was referred to arbitration before the former Chief Justice of India, Mr. Justice Y.K. Sabharwal, where the proceedings were still pending. It is further pleaded that before the matter was referred to arbitration; M/s. Ozone Builders & Developers Pvt. Ltd. agitated the issue before the Delhi High Court. It is also stated that Shri Praveen Mangla, who initially filed objections along with Rajesh Agarwal, Inder Mangla and Jeetmal Jain; withdrew the objections before the Authorized Officer and thereafter, it is only Rajesh Agarwal, who filed objections. A reference was also made to the Public Interest Litigation [D.B. Civil Application (PIL) No. 4810 of 2008], filed by one Ashok Agarwal, being hand-in-glove with Rajesh Agarwal, assailing the notification dated 1st December, 2006, issued under Section 48 of the Act of 1894, with reference to de-acquisition of the land in dispute. However, the said Public Interest Litigation was dismissed vide order dated 16th December, 2008, on the ground of locus-standi. That apart one of the khatedars i.e., Hazruddin, instituted a civil suit with reference to the same land in dispute praying for an injunction, which was declined followed by unsuccessful miscellaneous appeal as well as special appeal before the Division Bench. However, later on the suit itself was withdrawn.

The Authorized Officer having considered the objections raised by the appellant herein (Rajesh Agarwal), on remand of the matter, allowed the applications of the writ petitioners under Section 90B(3) of the Act of 1956, vide order dated 31st August, 2008, which was subjected to appeal by the appellant under Section 90B(7) of the Act of 1956 before the Divisional Commissioner, who set aside the order of the Authorized Officer and again remanding the matter for decision afresh vide order dated 29th December, 2008, which was impugned by the writ petitioners/respondents before the learned Single Judge, successfully.

The learned Single Judge having considered the pleaded facts and materials available on record as well as the submissions made at the Bar by the learned counsel for the parties, sustained the challenge to the impugned order dated 29th December, 2008; allowing the writ petitions vide impugned judgment and order dated 20th December, 2011, impugned in the instant intra-court appeals.

Mr. R.N. Mathur, learned Senior Counsel, for the appellant, reiterating the stand before the learned Single Judge, in reply to the writ petitions, has vehemently argued that the appeal before the Divisional Commissioner was very much maintainable since the administrative powers are always available to be exercised in order to meet the ends of justice apart from the judicial powers either on its own or before the appropriate forum. Referring to the text of Section 23 of the Act of 1956, the learned counsel would further submit that the State Government is vested with the administrative powers, in order to ensure fair play and curb the mischief in the proceedings. Moreover, First Schedule enlisting judicial matters does not include the proceedings under Section 90B of the Act of 1956, therefore, from a conjoint reading of Section 23(2) and 90B(3) of the Act of 1956, it is reflected that the nature of power exercised while entertaining the appeal by the Divisional Commissioner, is of administrative and not judicial in nature. According to the learned counsel for the appellant, sale of the land during the process of its acquisition, is void and not merely voidable, and as such, the act is illegal, and therefore, any transfer by way of sale, lease, mortgage or gift or otherwise, is void out rightly and not merely voidable. Referring to the ''special legislation'' i.e., Rajasthan Lands (Restriction on Transfer) Act, 1976; (hereinafter referred to as the ''Act of 1976'', for short) as pleaded and argued for writ petitioners, the learned counsel pointed out the object of the enactment is intended for prevention and misuse of process, by the builders, to make undue profit. Assailing the analogy of Section 64 of the Code of Civil Procedure (hereinafter referred to as the ''C.P.C.'', for short), the learned counsel submitted that the principle underlying has no application to the proceedings involved herein, in view of Section 4 of the Act of 1976. The two provisions operate entirely in different fields as Section 64 of C.P.C. deals with the alienation of the property under attachment whereas Section 4 of the Act of 1976, takes care of transfer of the land under acquisition. Furthermore, Section 42 of the Rajasthan Tenancy Act, 1955, prohibits transfer of the land in any form by a member of Scheduled Caste or Scheduled Tribe to the persons involved herein. The transfer involved herein was made by a member of Scheduled Tribe, therefore, the transfer of the land is void. The allegations to the effect of the appellant and Praveen Mangla being related to each other and/or hand-in-glove, in raising objections to the proceedings, have been repelled as frivolous and unfounded. However, the relationship has not been totally denied, but has been assailed as malicious pleading, to deflect the attention from the main issue i.e., illegal sale and agreement to develop the estate in issue involved herein. It is further argued that de-acquisition under Section 48 of the Act of 1894, is itself impugned in the writ proceedings before the learned Single Judge. The learned counsel in order to reinforce his submissions placed reliance on the opinion of the Hon''ble Supreme Court in the case of Kanta Prasad D. Patel Vs. Municipal Corporation of Greater Bombay and Others, ; State of Uttar Pradesh and Others Vs. Maharaja Dharmander Prasad Singh and Others, ; Meera Sahni Vs. Lt. Governor of Delhi and Others, and opinion of this Hon''ble Court in D.B. Civil Special Appeal (Writ) Number 570 of 2012 (Topkhana Desh Grah Nirman Sahakari Samiti Ltd. v. Jaipur Development Authority & Ors.).

Mr. Kamlakar Sharma and Mr. Abhay Bhandari, learned Senior Counsel for the writ petitioners/respondents, supporting the impugned judgment and order passed by the learned Single Judge and reiterating the pleaded facts of the writ applications, submitted that the appellant and Suresh Mangla were hand-in-glove, even though they have no locus-standi to raise objections; but the entire process of raising objections was initiated at the instance of M/s. Ozone Builders & Developers Pvt. Ltd., of which the Director was Prem Mangla, who had initially collaborated with M/s. Omway Buildestate Pvt. Ltd. with reference to the present project. The learned counsel would further submit that even though no appeal was maintainable in law, as preferred by the appellant, before the Divisional Commissioner against the detailed order dated 31st October, 2008, passed by the Authorized Officer, allowing the applications of the writ petitioners under Section 90B(3) of the Act of 1956. However, the Divisional Commissioner again entertained the appeal, setting aside the order passed by the Authorized Officer, remanding the matter for decision afresh vide impugned order dated 29th December, 2008, which was successfully challenged before the learned Single Judge. According to the learned counsel for the writ petitioners, appeal under Section 90B(7) of the Act of 1956, is maintainable only in case where there is a resumption under Section 90B(5). There is no appeal provided relating resumption under Section 90B(3) and law in this reference is no more res-integra in view of the judgments referred to and relied upon on behalf of the writ petitioners, as noted by the learned Single Judge. The argument made on behalf of the appellant referring to Section 23 has been repelled in view of specific power of appeal under Section 90B(3). Further, appeal being creature of statute, therefore, such a power cannot be assumed, as it is the statute which has to define the nature, ambit and width of the appeal provided under the statute. The appellant has no authority to raise any objection with reference to the land in dispute in view of text of Section 90B(3), where a khatedar himself makes an application for resuming the khatedari rights and allow him to develop the land, and contemplates no objections. The learned counsel further pointed out that the order passed in the Public Interest Litigation filed by one Shri Ashok Agarwal, was dismissed by the Division Bench of this Court and was also subjected to further challenge in SLP(C) Number 4533 of 2009, and that too was rejected by the Hon''ble Supreme Court on 2nd March, 2009. Supporting the distinction drawn by the learned Single Judge while dealing with the application of the opinion of the Hon''ble Supreme Court in the case of Meera Sahni (supra), it is pointed out that in the aforesaid case, no notification under Section 48 of the Act of 1894, which empowers the Government to withdraw from acquisition of any land on which possession has not been taken, was issued whereas in respect of the land in question notification under Section 48 of the Act of 1894, de-acquiring the land was issued on 1st December, 2001. Thus, Meera Sahni''s case is not a case of de-acquisition by the State Government, and therefore, the same has no application to the facts of the case at hand. The learned counsel for the writ petitioners supporting the interest and right of the writ petitioners in the land under acquisition urged that they would step in the shoes of the erstwhile owners. It is further argued that a conjoint reading of Section 3 and 4 of the Act of 1976, would reveal that on withdrawal of the acquisition proceedings under Section 48 of the Act of 1894, the impact and effect of Section 4 would be effaced and the result would not be different in a case where declaration under Section 6 of the Act of 1894, is declared invalid. Therefore, on a de-acquisition notification, purchase of the subject land in interregnum, if any, would not be void by itself as the restriction, if any, under Section 4 ceased to exist in view of de-acquisition notification under Section 48 of the Act of 1894. According to the learned counsel, having regard to the purpose intended under Section 4 of the Act of 1976 as well as Section 64 of C.P.C., the two conditions could be said to be logically identical so far as transfer of the land is concerned i.e., either during the period of operation of Section 4 of the Act of 1976 or under Section 64 of C.P.C., during the attachment and once the prohibition/restriction was withdrawn, the transfer could not be construed to be illegal. Further, the question of maintainability of appeal being a question of law could be raised, any time. Be that as it may, the sale/transfer of the land, which might be void qua the Government, at one stage, but in the face of de-acquisition under Section 48 of the Act of 1894, the transfer of the land in dispute could definitely be considered to be valid for all practical purposes to the land owners since the restriction of Section 4 ceased to operate.

The learned counsel for the writ petitioners in order to buttress their submissions have relied upon the law declared by the Hon''ble Supreme Court in the case of Raj Kumar Shivhare Vs. Assistant Director, Directorate of Enforcement and Another, ; Meera Sahni (supra); U.P. Jal Nigam, Lucknow through its Chairman and another Vs. M/s. Kalra Properties (P) Ltd. Lucknow and others, ; Special Land Acquisition Officer, Bombay and Others Vs. Godrej and Boyce, ; Surjit Singh and others Vs. Balbir Singh, ; Raghunath and Others Vs. State of Maharashtra and Others, ; M.P.V. Sundararamier and Co. Vs. The State of Andhra Pradesh and Another, ; Chand Patel Vs. Bismillah Begum and Another, ; State of Kerala Vs. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (dead) and others, ; State of Rajasthan and Others Vs. D.R. Laxmi and Others, ; Hagami Lal Ram Prasad, a firm and Others Vs. Bhuralal Ram Narain and Others, ; Balai Chandra Hazra Vs. Shewdhari Jadav, ; Sushil Kumar Mehta Vs. Gobind Ram Bohra (Dead) through his Lrs., ; Sarwan Kumar and Another Vs. Madan Lal Aggarwal, ; D.C. Johar and Sons Ltd. Vs. Mathew, ; M. Marathachalam Pillai v. Padmavathi Ammal & Ors.: (1971) 3 SCC 878 ; Motilal Madanchand Lodha Vs. Ragho Tanaji Patil and Others, ; Official Receiver, Muzaffarnagar Vs. Chandra Shekhar and Others, ; Gajey Pal Singh and Another Vs. The Board of Revenue, U.P. at Allahabad, , and the opinion of this Court in the case of Ashok Agarwal & Ors. v. State of Rajasthan & Ors. (D.B. Civil Writ Petition (PIL) Number 4810 of 2008) decided on 16th December, 2008; Gajendra Singh v. Divisional Commissioner, Jodhpur & Ors.: 2009 (2) WLC 668 ; Meena Sharma (Smt.) Vs. Rajendra Kumar Porwal and Another, ; Smt. Sheela Kothari v. BOR & Ors. (Special Appeal (Writ) Number 92 of 2012), and Ram Nath v. Ram Lal: 1956 RLW 92.

We have heard the learned counsel for the parties and with their assistance, perused the materials available on record.

The power vested in the State Government by virtue of Section 23 of the Act of 1956, has been relied upon by the learned counsel for the appellant. Section 23 of the Act of 1956 reads thus:--

"Section 23 - Controlling Power -

The control of all non-judicial matters connected with revenue in the State, other than matter connected with settlement, is vested in the State Government and the control of all judicial matters and of all matters connected with settlement is vested in the Board.

The expression "judicial matter" means a proceeding in which a revenue court or officer has to determine the rights and liabilities of the parties thereto and the proceeding and orders as well as appeals, revisions and references in the case specified in the First Schedule shall be deemed to be judicial matters for the purpose of this Act."

The scope and ambit of Section 23 and 24 fell for consideration of the Coordinate Bench at Principal Seat, Jodhpur, in the case of Gajendra Singh (supra), wherein it has been held in unequivocal terms that the remedy of appeal is available only with reference to an order passed by the Authorized Officer, in exercise of power under Section 90B(5), and the view has been reiterated in the case of Smt. Meena Sharma (supra). Thus, having regard to the Scheme of the Act of 1956, as contemplated under Section 90B, in the light of the opinion aforesaid, we are not persuaded to take a view different than the one arrived at by the learned Single Judge. Moreover, if the language of the statute is unambiguous, no statutory interpretation is warranted either to widen or restrict the same as observed by the Hon''ble Supreme Court in the case of Rajkumar Shivhare (supra). Further, by now it is well settled law that there cannot be estopple against the statute and an appeal is a creature of statute.

Referring to the text of Section 23(2), it has been pointed out that since the First Schedule, enlisting judicial matters, did not include proceedings under Section 90B of the Act of 1956. Thus, the exercise of the power is an administrative action and not judicial. The argument is sought to be reinforced by the opinion of the Hon''ble Supreme Court in the case of Kanta Prasad D. Patel (supra), wherein the Hon''ble Supreme Court examining the controversy in the backdrop of exercise of power with reference to ''administrative review'' in the peculiar facts of that case. In the case of Maharaja Dharmander Prasad Singh & Ors. (supra), the Hon''ble Supreme Court dealt with grant of permission for development of land by a private party, where the permission was reviewed and revoked for it, was obtained by committing serious irregularity, illegality, fraud, misrepresentation, concealments of materials facts etc. It is fundamental principle that ''fraud unravels everything''. Thus, the facts attendant in the case referred to and relied upon are entirely different than those operating in the instant appeals.

The sale of subject land during the process of its acquisition has been questioned and stated to be void in view of the mandate of the provisions of ''special legislation'' enacted by the State of Rajasthan i.e., Act of 1976, with an object to prevent misuse of process by unscrupulous builders to generate profit, relying upon the opinion of the Hon''ble Supreme Court in the case of Meera Sahni (supra), which has been considered and has been rightly distinguished by the learned Single Judge for the reason that the land in dispute in that case was purchased after declaration of acquisition under Section 5 and there was no notification under Section 48 of the Act of 1894, withdrawing the land from acquisition and it was in that factual matrix, the opinion has been expressed by the Hon''ble Supreme Court. In the case at hand, in the face of notification dated 1st December, 2006, under Section 48 of the Act of 1894, de-acquisition of land in dispute, conferred the writ petitioners with the vested right. Their applications under Section 90B(3) of the Act of 1956, were thus competent and we are in agreement with the view and finding arrived at by the learned Single Judge in this aspect of the matter.

The purchase of land in the face of prohibition and restriction imposed by Section 3 and 4 of the Act of 1976, has to be examined in the backdrop of the fact that the State Government by publication of notification dated 1st December, 2006, under Section 48 of the Act of 1894, released the land in dispute from acquisition. A conjoint reading of the provisions of Section 3 and 4 of the Act of 1976, in juxtaposition to Section 48 of the Act of 1894, would reflect that the prohibition and restriction of transfer imposed is with a view to prevent the mischief during acquisition proceedings and therefore, any transfer of the land, sought to be acquired, without previous permission, would be void qua the State Government, but the same principle cannot be applied in a situation when the same land has been de-acquired in exercise of power under Section 48 of the Act of 1894.

It is, no doubt true that the transaction/transfer of the land in dispute, in the case at hand did take place through registered sale deed during the operation of the restriction as contemplated under Section 4 of the Act of 1976, but in view of the subsequent development i.e. withdrawal of the acquisition proceedings, in exercise of the power under Section 48 of the Act of 1894; the transfer of the subject land and the transaction would be valid. Somewhat similar question has been examined by the Hon''ble Apex Court of the land in the case of State of Madhya Pradesh and Others Vs. Vishnu Prasad Sharma and Others, holding that Section 48(1) confers special power to government to withdraw from the acquisition without cancelling the notifications under Section 4 and 6, provided it has not taken possession of the land covered by notification under Section 6 and this power can be exercised even after the Collector has made the award under Section 11, but before the possession is taken under Section 15. Therefore, the proposition projected that without an order under Section 48(1), the notification under Section 4 must remain outstanding, was declined. This Court in the case of Jasraj (supra), held that the effect of exercise of power under Section 48 of the Act of 1894, would result into withdrawal of notification under Section 4, wiping out all the proceedings of acquisition. Issuance of process afresh would be necessary if at all subsequently the Government intended to acquire the land.

In the case of M.K. Kunhikannan Nambiar Manjeri Manikoth (supra), the Hon''ble Supreme Court dealing with the issue of wide order or decision observed thus:--

"7. It is not necessary for us to go into the merits of the case. We are of the view that the order passed inter parties in C.R.P. 3440 of 1977 dated 2.11.1977, has become final, and it concludes the matter. The observations made in the proceedings, at the instance of the 1st respondent regarding the validity of the order of the Board, in C.R.P. 3696 of 1977, will not, in any way, affect the legality and validity of the proceedings declining to implead respondents No. 3 and 4 or the order passed in Revision there from - C.R.P. 3440 of 1977. It is true that the proceedings dated 28.6.1977 was observed to be void in law in C.R.P. 3696 of 1977, filed by the first respondent. In our opinion even a void order of decision rendered between parties cannot be said to be non-existent in all cases and in all situations. Ordinarily, such an order will, in fact be effective inter parties until it is successfully avoided or challenged in higher forum. Mere use of the word ''void'' is not determinative of its legal impact. The word "void" has a relative rather than an absolute meaning. It only conveys the idea that the order is invalid or illegal. It can be avoided. There the degrees of invalidity, depending upon the gravity of the infirmity, as to whether it is, fundamental or otherwise and in this case, the only complaint about the initiation of the suo moto proceedings by Board was, that it was not initiated on intimation by the State Land Board about the non-filing of the statement as required by Section 85(7) of the Kerala Land Reforms Act. In our opinion, this is not a case where the infirmity is fundamental. It is unnecessary to consider the matter further.

In Halsbury''s Laws of England, 4th edition, (Reissue) Volume 1(1) in paragraph 26, page 31, it is stated, thus:

"If an act or decision, or an order or other instrument is invalid, it should, in principle be null and void for all purposes: and it has been said that there are no degrees of nullity. Even though such an act is wrong and lacking in jurisdiction, however, it subsists and remains fully effective unless and until it is set aside by a Court of competent jurisdiction. Until its validity is challenged, its legality is preserved."

In the Judicial Review of Administrative Action De Smith, Wolf and Jowell, 1995 edition, at pages 259-260 the law is stated, thus:

"The erosion of the distinction between jurisdictional errors and non-jurisdictional errors has, as we have seen, correspondingly eroded the distinction between void and voidable decisions. The courts have become increasingly impatient with the distinction, to the extent that the situation today can be summarised as follows:

(1) All official decisions are presumed to be valid until set aside of otherwise held to be invalid by a court of competent jurisdiction."

Similarly, Wade and Forsyth in Administrative Law, Seventh edition-1994, have stated the law thus at pages 341-342:

"...every unlawful administrative act, however invalid, is merely voidable. But this is no more than the truism that in most situations the only way to resist unlawful action is by recourse to the law. In a well-known passage Lord Radcliffe said:

''An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.''

This must be equally true even where the brand of invalidity is plainly visible : for there also the order can effectively be resisted in law only by obtaining the decision of the court. The necessity of recourse to the court has been pointed put repeatedly in the House of Lords and Privy Council without distinction between patent and latent defects.

The above statement of the law supports our view that the order of the Board dated 28.6.1977, declining to implead respondents No. 3 and 4 (which stood confirmed in Revision) concludes the matter against respondents No. 3 and 4."

In the case of D.R. Laxmi and Ors. (supra), the Hon''ble Supreme Court observing as to what is void for one and may not be void for others, held thus:--

"9. The order or action, if ultra vires the power, it becomes void and it does not confer any right. But the action need not necessarily set at naught in all events. Though the order may be void, if the party does not approach the Court within reasonable time, which is always a question of fact and have the order invalidated or acquiesced or waived, the discretion of the Court has to be exercised in a reasonable manner. When the discretion has been conferred on the Court, the Court may in appropriate case decline to grant the relief, even if it holds that the order was void. The net result is that extraordinary jurisdiction of the Court may not be exercised in such circumstances. It is seen that the acquisition has become final and not only possession had already been taken but reference was also sought for; the award of the Court under Section 26 enhancing the compensation was also accepted. The order of the appellate court had also become final. Under those circumstances, the acquisition proceedings having become final and the compensation determined also having become final, the High Court was highly unjustified in interfering with and in quashing the notification under Section 4(1) and declaration under Section 6."

A Coordinate Bench of this Court in the case of M/s. Hagami Lal Ram Prasad (supra) held thus:--

"23. "Forward contract" was defined in the Order as a contract for delivery of cotton on some future date and "new crop" was defined as any cotton crop sown after the 28th of February, 1943. The combined effect of the two Orders was that forward contracts were prohibited by the first Order about cotton sown before the 1st March, 1943 and by the second Order about crop sown after the 28th February, 1943. It must be conceded that it these Orders were in force at the time when the transactions in suit were made, and continued to be in force, the transactions would be illegal.

Although there is nothing on the record to show whether the cotton about which the transactions were made in the present case was sown before or after the 28th February 1943, since the transactions took place in 1947-48, the inference may be, as the learned Judge assumes though it may be somewhat speculative, that the transactions did relate to cotton sown long after the end of 1943. Even so, for the reasons which we proceed to state and some of which have been recognised by the learned Judge himself, we are unable to hold that the transactions are illegal as being opposed to the specific provisions of the Order in question.

By virtue of the notification No. 1631 of 1949 dated the 28th January, 1949, published by the Government of the United State of Rajasthan in Gazette dated 10-2-1949, the above Orders stood repealed. The said notification was issued in exercise of the powers conferred by Section 3 of the United State of Rajasthan Essential Commodities Control Ordinance, 1948. As a further result of the notification, the Indian Cotton (Control) Order, 1945, made by the Central Government and published tinder its Notification No. 80-Tax. 1/48 dated 2nd August, 1948 together with all notifications, directions and orders, etc. issued thereunder or to be issued thereafter was applied to the whole of the United State of Rajasthan with immediate effect.

Section 7 of the Indian Cotton (Control) Order, 1945 which was brought into force abrogated and repealed the previous Orders. In this case as found by the learned Judge the transactions between the parties related to the cotton of the year 1947-48 and the dealings had taken place in October, 1947, though delivery was to be given on 24-2-1948 and 23-4-1948 respectively. The learned Judge observes that since the notification introducing the Indian Cotton (Control) Order, 1945 was published much later the previous Orders continued to operate on the date of the transactions and therefore the transactions were illegal.

This argument ignores the implications of Cl.(5) of the above Order of 1945 by which forward contracts relating to cotton of the year 1948-49 or earlier season were excluded from the provisions of the Control Order. This was in supersession of the Notification of the Textile Commissioner dated 19th January, 1946. Obviously therefore this clause of the Order had retrospective operation and rendered valid the transactions in question; but that apart, even accepting the argument that at the time when the agreements were made, they were unenforceable in a Court of Law and as such void when the inhibition was lifted they became enforceable and were validated by the operation of the Control Order of 1945.

The agreements were not void ab initio, they became void or unenforceable due to the prohibition of the law and when the ban was removed, there was no further bar to their enforcement. We therefore hold that the transactions were no longer affected by the second Order of 1943 when the Order in question stood repealed. Besides the suit is really not one to enforce any contract relating to purchase or sale of cotton within the prohibition of the above notification or Order. It is a suit by an agent claiming indemnity against the Principal for the loss which the agent had suffered in carrying out the directions of the Principal.

The right to such indemnity, as pointed out earlier, was founded on Section 222 of the Law of Contract. The right to indemnity, which was an incident of the contract of agency was not hit by the provisions of the second Order at all and was a matter which was entirely collateral to a forward contract of purchase and sale of cotton which the provisions of the second Order aimed at prohibiting. The view of law stated above is fortified by the decision of the Supreme Court in Kishan Lal and Another Vs. Bhanwar Lal, : ."

It needs no reiteration that the consent of the parties can neither oust the vested jurisdiction of a judicial process nor vests a jurisdiction not vested by law. In the case of Balai Chandra Hazra (supra), the Hon''ble Supreme Court observed thus:--

"13. This very principle was re-affirmed in Meenakshi Naidoo v. Subramaniya Sastri, Law Reports, 14 LA. 160 wherein the High Court in appeal against the order of the District Judge had set aside the order of the Distt. Judge appointing the appellant on the Committee of the Pagode in the Madras Presidency. When the matter was before the High Court it was never contended that the appeal was incompetent and such a contention was raised before the Judicial Committee for the first time. Following the decision in Ledgard v. Bull (supra), it was held that when the Judge has no inherent jurisdiction over the subject matter of a suit, the patties cannot by their mutual consent convert it into a proper judicial process, although they may constitute the Judge their arbiter, and be bound by his decision on the merits when these are submitted to him. Therefore, the failure on the part of the appellant to object to the High Court hearing an appeal under Clause 15 of the Letters Patent taking, oral evidence in respect of the amended pleadings would not clothe the Bench with jurisdiction to record fresh" oral evidence and proceed to appreciate the same and record findings of facts."

The argument emphasized on behalf of the appellant to the effect that even if, the order of the Divisional Commissioner is not sustainable, but interference by the learned Single Judge by quashing the impugned order dated 29th December, 2008, has resulted into restoration of an order, that has the effect of perpetuation of an illegality is devoid of substance. In our considered opinion, the contention lacks merit and has been rightly repelled by the learned Single Judge. In the face of de-acquisition of the subject land in dispute vide notification dated 1st December, 2006, under Section 48 of the Act of 1894, conferred the writ petitioners with vested right and interest in the land in dispute and we are in agreement with the view.

In the result, the intra-court appeals are devoid of any substance and lacks in merit, therefore, deserves to be dismissed.

Ordered accordingly.

In view of the final adjudication on the intra-court appeals, the stay applications stand closed.

However, in the facts and circumstances of the case, there shall be no order as to costs.