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2007 Supreme(Bom) 306
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.B. CHAUDHARI, J.
Maharashtra Housing and Area Development
Authority and another –Petitioners.
VERSUS
Mahesh Jaggumal Sacchani and others... RESPONDENTS.
WRIT PETITION NO. 4227 OF 2006
Decided on:06.2007
Advocates appeared :
Mr. Sunil Manohar & A.A. Naik Advocates for the
Petitioners.
Mr. A.M. Ghare Advocate for Respondents 1 to 4.
Mr.S.Y. Deopujari, A.G.P., for Respondent No. 5.
Headnote:Civil Procedure Code, 1908 - Section 9 - Jurisdiction of Court - Court has to first examine whether it has jurisdiction or not - Having no jurisdiction, Court cannot adjudicate matter at all. - It is the responsibility of the Court to first examine whether it has jurisdiction or not. If the Court has no jurisdiction then the Court cannot touch the matter at all.
Constitution of India - Articles 226 and 227 - Urban Land (Ceiling and Regulation) Act, 1976, Sections 10(4) and 33 - Maharashtra Housing and Area Development Act, 1976, Sections 173 and 177 - Writ petition - Against decree of Civil Court - Delay and laches - Land declared surplus under Urban Land Act - Allotted to MHADA in 1989 - Plaintiff’s suit challenging allotment of 1990 decreed in 1999 - Writ petition against filed in 2006 - Challenged on ground of delay and latches - Petitioners being statutory authorities cannot be asked to explain day to day delay - Delay in affidavit satisfactorily explained - Matter remanded to Civil Court to decide it afresh on merits. - The delay has been properly explained by the petitioners. At any rate, the petitioners being statutory authorities which have to act through its lawyers, officers and servants and has to rely upon its lawyers, officers and servants, cannot be asked to explain day to day delay. However, in the averments in the petition and counter-affidavit, as aforesaid, the delay has been explained supported by several documents which are sufficient to reject the argument that the petition should be dismissed on the ground of delay and laches.
The impugned judgment and decree is clearly vitiated due to fraud and collusion and in the light of pronouncement of law stated herein before, there is a right and obligation in the superior Court to set aside the orders obtained by fraud and not to allow perpetuation of benefits obtain ed by fraud.
Since the trial Court has utterly failed to examine the various issues and the material facts and legal position, it would subserve the ends of justice if the trial Court is directed to decide the suit afresh. The trial Court shall ignore the pursis (Ex. 56) and proceed to determine the suit. The observations made in this judgment on the issues in the suit shall not influence the trial Court in deciding the suit on all issues.
Urban Land (Ceiling and Regulation) Act, 1976 - Section 10(3) - Maharashtra Housing Area and Development Act, 1976, Section 177 - Civil Procedure Code, 1908, Section 9 - Jurisdiction of Civil Court - Ousted by MHADA Act - Civil Court decide suit and pass judgment and decree - Even though parties to suit confer jurisdiction on Civil Court. - Section 177 of the MHADA Act reads thus :
"Save as otherwise expressly provided in this Act, no Civil Court shall have jurisdiction in respect of any matter which the Authority or the Tribunal is empowered by or under this Act, to determine; and no injunction or stay shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred or duty imposed by or under this Act."
These provisions may take away the jurisdiction of Civil Court. It is worthwhile to note that the suit land having been vested in the State Government under Ceiling Act, it was the State Government who was required t o be party-defendant in the suit in accordance with the provisions of Section 79 of the Civil Procedure Code. The suit was obviously bad for joining Deputy Collector as defendant No. 2 which is contrary to the provisions of Section 79 of Civil Procedure Code. The Civil Court also failed to notice that statutory notices under Section 80 of the Civil Procedure Code and under Section 173 of MHADA Act were not even served by the plaintiffs in order to maintain the suit. Since the jurisdiction o f the Civil Court was said to have been barred, it ought not to have endeavoured to try the suit without first deciding the issue regarding jurisdiction etc. and pass the impugned judgment and decree. Court does not think that a Court of law can exercise jurisdiction if the same is specially taken away by the Act of Parliament or State Legislature. Court does not think that in the wake of such prohibition contained in the Special Acts the Civil Court can adjudicate the suit and pass the judgment and decree merely because the parties to the suit confer jurisdiction on the Civil Court.
Urban Land (Ceiling and Regulation) Act, 1976 - Sections 10(4) and 33 - Maharashtra Housing and Area Development Act, 1976, Sections 173 and 177 - Civil Procedure Code,1908, Section 80 - Jurisdiction of Court - Civil suit challenging allotment of surplus land to MHADA - Opposed on various grounds inter-alia that Civil Court had no jurisdiction - Suit against Government without notice under Section 80 of CPC cannot be filed - Suit decreed - Writ petition against - Pursis filed in Court not signed by either of Advocates - Advocate of defendant-2 not authorised to sign pursis - Court had not considered objection as to its jurisdiction etc. - Court acted on pursis without signature of counsels - Decree liable to be set aside - Matter remitted to Civil Court to decide it afresh on merits. - It is not in dispute that the pursis (Ex. 56) was filed which was signed by the counsel for the plaintiffs as well as by the counsel for the defendant No. 2 only. The pursis states that issue Nos. 4-A and 4-B are only relevant while other issues (issue regarding jurisdiction of Civil Court) have become redundant. The respondents herein could not all throw light as to how all other issues including the issue regarding jurisdiction became redundant. The pursis does not give any reason for saying so nor the impugned judgment of the trial Court shows any reason for the Civil Court to assume that the important issues regarding jurisdiction became redundant. In the absence of any justification, Court does not think that the issue regarding jurisdiction of a particular Court can become redundant at least qua the Court exercising such jurisdiction. On the contrary in Court’s opinion, it is the responsibility of the Court to first examine whether it has jurisdiction or not. If the Court has no jurisdiction then the Court cannot touch the matter at all. In this case, the Civil Court has failed in its duty to do so. On the contrary, there appears to be utter haste on the part of the plaintiffs and defendant No. 2. i.e. petitioners and their counsel and witness Chandra- shekhar Dhande. The pursis was filed on 30.10.1999 under the signatures of Shri S.D. Dewani, counsel for the plaintiffs and Shri B.G. Kulkarni, counsel for defendant No. 2. The pursis is not signed by the Government Pleader for defendant No. 1 and it does not appear that the copy of the pursis was served on defendant No. 1. That apart, no "say" was at all called by the Court from the Government Pleader. The trial Court simply accepted the pursis and then on the same day of filing of pursis, witness No. 1 Chandra- shekhar Dhande was examined and cross-examined wherein the witness stated that he was ready to release the suit land in favour of the plaintiffs. This statement is obviously without any authority of MHADA and State Government since the averments in the petition to that effect have not been rebutted. The witness is no body to release the suit land in favour of the plaintiffs and Court therefore finds that such a statement made by the witness was a step towards collusion between them and the plaintiffs. The trial Court should have rejected the pursis, but it acted on it and on the same day, the trial Court delivered the judgment and also passed the decree on the basis of the admissions of the witness. Perusal of the reasons in the impugned judgment clearly shows that the trial Court did not at all bother to consider the nature and status of the suit land and the impact of the provisions of the Ceiling Act as well as MHADA Act. The Civil Court also did not ascertain as to who was the real owner of the land who would be entitled to the benefit of circular dated 23.8.1988 and whether the plaintiff No. 4 Ramji had any saleable interest and title in the suit land. The Civil Court also did not consider that the suit land was already declared surplus and had vested in the State Government under the Ceiling Act. From perusal of the unrebutted averments in the petition, the manner in which pursis was filed jointly by counsel for plaintiffs and defendant No. 2, the manner in which the trial Court acted on the pursis, the manner in which the witness Chandrashekhar Dhande deposed, and the manner in which trial Court simply ignored to find out whether it has jurisdiction or not, or whether Ramji, plaintiff No. 4 was really own er or not, all collectively lead Court to conclude that there was a clear cut collusion and fraud played on the Court to obtain the impugned judgment and decree.
2. Facts :
One Gomaji Mahadeo Darokar who was the owner of field Survey No.75/2K, mouza Durga Dhamna, Nagpur, was found to be a surplus land holder under the provisions of Urban Land (Ceiling and Regulation) Act, 1976 (for short Ceiling Act) with surplus area of 36,315.80 sq. mts. and as such the said surplus land vested in the State Government by virtue of notification dated 26.10.1989 under Section 10(3) of the Ceiling Act. On 12.10.1990 the said land was allotted to the petitioner- MHADA and accordingly possession was taken on 31.10.1990. Respondents 1 to 3 and original respondent No.4 Ramji Mahadeo Darokar, now dead, had together filed Regular Civil Suit No.1068 of 1991 on 22.4.1991 in the Court of Civil Judge, Sr.Dn., Nagpur, for declaration and permanent injunction. Ramji claimed to be the owner of the same land admeasuring 3.235 acres bearing field Survey No. 75/2K (Old), i.e. Kh.No.140 (new). Under registered sale-deed dated 11.10.1990 Ramji sold two acres out of the said land to respondents 1 to 3 and by another sale-deed dated 15.10.1990 he sold the remaining 1.235 acres of land to respondent no.3. Ramji claimed that he received the said piece of land in partition amongst his brothers Gomaji Darokar and Narayan Darokar and that is why he was the owner of the said land admeasuring 3.235 acres. The suit was thereafter amended and a plea was taken that the State Government had issued a Circular dated 23.8.1988 which permitted release of 40% of total surplus land to the owner and the said aspect was considered by this Court in W.P. No. 481 of 1994 decided on 19.2.1997 and hence even under the said Circular the plaintiffs were entitled to return of 40% of the surplus land, i.e. 14526.32 sq. mts. Of land. 3. The petitioner-MHADA appeared before the trial Court and filed its written statement raising the following objections :
(i) the suit was under valued as the relief of declaration of ownership was sought but the valuation was made only at Rs.300/-.
(ii) the jurisdiction of Civil Court is ousted in view of the bar contained under Section 177 of the Maharashtra Housing Area and Development Act, 1976 (for short the MHADA Act) and Section 33 of the Ceiling Act provides for remedy of appeal. 6
(iii) the suit land had already vested in the State Government after issuance of the notification under Section 10(3) of the Ceiling Act on 26.10.1989 and, as such, both the sale-deeds dated 11.10.1990 and 15.10.1990 were null and void.
(iv) Gomaji was the recorded owner of the suit land and under order dated 18.8.1987 the said land was declared surplus and as such any transaction thereafter became meaningless in view of Section 10(4) of the Ceiling Act. (v) Ramji had absolutely no concern with the suit land and he was never recorded in any Government record as the owner of the suit land.
(vi) No statutory notice as contemplated by Section 173 of the Act was even served.
(vii) The owner of the land was Gomaji Darokar as per Government records and Ramji had absolutely no concern with the said land bearing Kh.No. 75/2K (old), 140(new) of mouza Durga Dhamna.
(viii) The land having been vested in the State Government, statutory notice under Section 80 of the Code of Civil Procedure was not served. In accordance with the aforesaid pleadings, issues were framed by the trial Court. The maintainability of the suit on the aforesaid grounds, as raised in the written statement, and in accordance with the issues framed
