JUDGMENT [ENTITY], J.
1. Instant writ petition has been filed by the petitioner for quashing the order dated 15.3.91, order dated 15.12.89 and order dated 25.11.89, Anx.7 to the writ petition. It is further prayed by the petitioner that construction in question over the land in dispute may be regularised in the terms and conditions stipulated in circular dated 21.1.82, Anx.3 to the writ petition issued by the State Government.
2. It is shocking to note that irrespective of due service upon sole respondent, [ENTITY], no reply has been filed on the specious plea that the record relating to the land in question and constructions raised thereon are missing from the office of the Board. In the present case sole respondent [ENTITY] is being respondent by learned Counsel Shri [ENTITY]. .
3. The acts, omissions and commissions of the [ENTITY]t in the instant case speak louder than the words. Suffice it to say that under [SECTION] of the [ACT] (hereinafter referred as the Act of 1959'), the Executive Officer, [ENTITY] is accountable and responsible for the custody of records of the Board including all papers and documents communicated with the proceedings of the Board and all the committees.
4. The present writ petition is a classic example of travesty of justice and unique tacit support extended to the petitioner by the [ENTITY]. It is well to remember that in State of Rajasthan except Mount Abu there is no Hill Station. It is a matter of common knowledge that now-a-days moss-rose growth of unplanned and illegal constructions against the bye-laws of the Board are being raised and in process of raising unplanned and illegal constructions green trees are being indiscriminately cut away disturbing the ecological order at Mount Abu. A most inconvenient moot question in the present writ petition can be raised as to where the [ENTITY] and its officers remain busy when illegal and unplanned constructions against the bye-laws start coming into existence ?
5. Mr. [ENTITY], Director of Centre for Provisional and Applied Ethics at the University of Manitoba (Canada), has given a correct answer to the aforesaid question posed by the Court which reads thus:
As a national all our focus is of government deficits but we are also running a very significant moral deficit and I think it's much more threatening to our society than the financial one.
6. It is to be remembered that in transitional period of our democratic polity this Court is expected to send necessary message to the effect that laissez faire methods being adopted by the [ENTITY] and its officers on rule of law flouting policy decisions taken by the State Government would be viewed seriously and would always be castigated as an assault on the rule of law. It is to be imbibed that the Courts are not only guardians of rule of law but its trumpeter also and are ever ready to confront those who would make an attempt to undermine the rule of law. It is made clear that this Court would always endeavour to see that Enactments, Statutory Rules and policy decisions taken by elected representatives of people i.e. legislative and political executive which are constitutional are complied with faithfully by all bureaucrats including local bodies. Protection of people is possible only when governance is impartial and law is not 'held in abeyance'.
7. The State Government in exercise of its power conferred under [SECTION] of the Act of 1959 read with [SECTION] and [SECTION] thereof and [SECTION] of the [ACT] (hereinafter referred as [ACT]') has made Rules, which may be called [ACT]' (hereinafter referred to as 'the Rules of 1974') regulating disposal of land belonging to Municipal Board within its Municipal limits. [SECTION] of the Rules of 1974 clearly provides that the out-right sale of land to all municipal areas shall be wholly abandoned and instead there shall be sale of lease hold rights only on payment of premium referred to in [SECTION] of at concessional rate under these Rules with further liability to pay annual urban assessment or ground rent. By way of amendment, [SECTION] of the Rules of 1974 was added on 11.2.82, which reads thus:
31. Sale or disposal of Municipal land:
The procedure for sale or disposal of Municipal or other lands vesting in or belonging to the Board not covered by these Rules shall be the same as provided under these Rules.
8. It is also evident from perusal of circular dated 21.1.82, Anx.3 to the writ petition, that the State Government has taken a policy decision as a welfare state to extend benefits to little Indians living in hutment popularly known as 'Kachchi Basti'. By virtue of policy decision in shape of circular dated 21.1.82, Anx.3, the State Government has decided that whosoever made an encroachment over the land belonging to Municipal Board upto 1.1.81, such lands are to be regularised in favour of tress- passes by a committee constituted in each District. In aforesaid policy decision taken by the State Government the committees so constituted in the Districts were authorised to take decision either to regularise these 'Kachchi Bastis' where they exist or to shift them at another place by allotting land to dwellers of these 'Kachchi Bastis' in accordance with the guide-lines given in the circular except in Jaisalmer and Mount Abu. It is evident from policy decision, Anx.3, that the cases relating to Jaisalmer and Mount Abu were required to be sent to the State Government for its approval whereas other Districts Committees itself were competent to regularise such 'Kachchi Bastis' without sending them for approval to the State Government.
9. A close scrutiny of the survey report, Anx.4, of the land in dispute indicates that survey was done about land in question on 16.10.81 and one [ENTITY] s/o Shri [ENTITY] resident of Mount Abu was found to be in possession over [CASE NUMBER] measuring 27 x 22 meter from 1971 and as such his case was liable to be regularised according to the terms and conditions stipulated in policy decision dated 21.1.82, Anx.3 to the writ petition. In the present case [ENTITY] instead of making any attempt to get the land in question regularised in his favour, he decided to transfer the land in dispute in favour of the petitioner on 2.12.86 through a registered sale-deed, a copy whereof is filed as Anx.2 to the writ petition.
10. A mere look at the policy decision dated 21.1.82, Anx.3, goes a long way to prove that even after regularisation Shri [ENTITY] was not entitled to transfer the land in question for a period of ten years. But here in the present case before his regularisation he transferred the land in favour of the petitioner by registered sale-deed dated 2.12.86, Anx.2 without acquiring any right, title and interest over the land in question.
11. I have heard the learned Counsel for the parties. Perused the materials available on record.
12. Indisputably the petitioner purchased the land from [ENTITY], the erstwhile so called owner, through so called registered sale-deed dated 2.12.1986, Anx.2. Thus, the petitioner alleged his source of title from [ENTITY] who himself had no right, title and interest in the land in question as it was not regularised in his favour. It is to be noticed that even after regularisation in his favour, [ENTITY] was not entitled to transfer the land so regularised in his favour for a period of ten years according to the policy decision taken by the State Government on 21.1.82, Anx.3, therefore, in the present case the petitioner does not get elevated above the source of title of [ENTITY].
13. There is yet another reason to arrive at the aforesaid conclusion. The alleged registered sale-deed dated 2.12.86, Anx.2, is ab-initio void within the meaning of [SECTION] of the [ACT]. [SECTION] of the [ACT] covers cases in which the consideration or object of an agreement is forbidden by law or a public policy at the time when the agreement is entered into or is of such a nature that if the contract is permitted it would defeat the provisions of any existing statute, public policy or any existing policy decision taken by the State.
14. It is true that expressions 'public policy' or 'opposed to public policy' are not defined under [ACT]. To my mind, expression 'public policy' connotes some matter which concerns the public good and the public interests. Hence, policy decision taken by the State can also said to be synonymous to public policy provided such policy decisions taken by State are legal and valid.
15. Here in the present case State Government has taken a policy decision on 21.1.82, Anx.3, that a dweller of 'Kachchi Basti' is entitled to get regularisation of his land in his possession upto 1.1.81 but after regularisation, he will not be entitled to alienate such land for a period of ten years. The aforesaid embargo envisaged in the policy decision of the State Government is perfectly legal and valid for the reason that an absolute restrain to transfer such land is not perpetual but for a fix period of ten years. Had it been perpetual, the court would have refused to recognize it ? But since it is for a reasonable period of only ten years with an object that persons may not indulge in land garbing belonging to State or Municipal Boards, therefore, an embargo of ten years has been created by the State in its aforesaid policy decision which is perfectly legal and valid.
16. It is further true that right of transfer is incidental to the propety and absolute restrain of such right being repugnant to the concept of sale which is forbidden under [SECTION] of the [ACT]. Here in the present case since embargo on the right of transfer of [ENTITY] is only for ten years, therefore, it is perfectly legal and valid.
17. Once this Court is satisfied that the policy decision taken by the State Government prohibiting transfer of regularised land by a person who has committed encroachment on the land of Government or Municipal Boards, after regularisation for a period of ten years, is valid, the transfer made by [ENTITY] in favour of the petitioner is ab-initio void and does not confer any right, title and interest in favour of the petitioner. Since the alleged registered sale-deed dated 2.12.86, Anx.2, obstructs the policy decision taken by the government and also had an effect of nullifying the aforesaid policy decision of the State, therefore, it is void ab-initio and is to be ignored within the meaning of [SECTION] of the [ACT].
18. I am of the view that in a modern progressive society with fast changing social values and at the juncture when there is a crisis of confidence, the concept of public policy used under [SECTION] of [ACT] deserves to be widened to meet the demands of new situation by including policy decision taken by the State Government which is eminently just, proper and legal to keep pace with the globlised progress of society.
19. In similar circumstances a question arose before the Apex Court in the case of the [PRECEDENT] etc., where Hon'ble [ENTITY], J. speaking for the Court ruled that such transfers having nomenclature of sub- awardis or nominees of any kind will not get any right, title or interest over the land which has vested in State free from all incumbrances and the decision rendered by this Court was modified. It is true that in that case the land in dispute was acquired under [ACT] and thereafter erstwhile owners have sold the property to others after notification under [SECTION] of the [ACT] and in case of Secretary, [PRECEDENT] (supra) it was held that the purchaser gets no title to the acquired land since the sale was found to oppose to the public policy. It was further held in the case of Secretary, [PRECEDENT] (supra) that such sales are void under [SECTION] of the [ACT].
20. It is true that in para 31 of the case of Secretary, [PRECEDENT] (supra) their lordships after looking into the facts and circumstances of that case have given certain concessions to the purchasers for residential purpose upto the extent of 250 sq. yard In some other scheme of J.D.A. but while extending the aforesaid concession in the said para a note of caution was added in para 31 which reads thus:
XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX Since we laid down the law for the first time, we have not interfered with the direction of the High Court but suitably was modified. This direction, therefore, will not be used as a precedent.
21. In view of the aforesaid discussion, the argument of learned Counsel for the petitioner Shri [ENTITY] to the effect that the petitioner is entitled to get relief on the basis of so called registered sale-deed dated 2.12.86, Anx.2, is hereby negatived.
22. The second limb of the argument of the learned Counsel for the petitioner before me is that the petitioner is entitled to get relief on the basis of decree passed by the learned trial court in [CASE NUMBER] decided on 16.10.[SECTION]. Learned Counsel for the petitioner Shri [ENTITY] streneously urged before me that even if the petitioner is not capable to acquire any right, title and interest over the land in question within the meaning of policy decision taken by the State Government on 21.1.82, Anx.3, yet he is entitled to obtain relief on the basis of decree passed by civil court on 16.10.[SECTION].
23. Suffice it to say in this regard that for the reasons best known to the petitioner he has not filed the judgment of civil court on the basis of which the decree dated 16.10.[SECTION] has been prepared. In fact it is a finding recorded by a civil court which is binding in subsequent litigation not the decree. It is to be imbibed that in a suit for permanent injunction, declaration of title is indirectly involved and no suit for permanent injunction can be decreed without recording a positive finding about the title of plaintiff.
24. It is true that possessory title is also recognised in a suit for permanent injunction but such possession should be of considerable period. It is further true that if plaintiff predecessor in interest has jural relationship with him, such possession can be tagged to that of the plaintiff. Admittedly in the present case on hand the petitioner has no jural relationship with his transfer or [ENTITY], therefore, his possession over the disputed land on the relevant date cannot be tagged with his possession.
25. From the facts and circumstances discussed in detail in preceding paragraphs I have no hesitation to hold that the decree dated 16.10.[SECTION] has been obtained fraudulently by the petitioner and [ENTITY] which is nullity and is to be ignored.
26. The [ENTITY] like any other instrumentality of the State must take responsibility for the acts, omissions and commissions of its officers who made an attempt before this Court by extending their tacit support to the petitioner to obtain a favourable order from this Court, must have extended a similar support before the civil court to the petitioner leading to the [ENTITY] to suffer a decree at the hands of the petitioner and his transferor [ENTITY] on non-existent ground. The aforesaid acts, omissions and commissions of the officers of the [ENTITY] extending unholy support to the petitioner in civil court tantamount acts of fraud and bad faith on the part of Board's officers who allowed the petitioner and his transferor [ENTITY] to obtain a decree in civil court against the Board. I am of the view that the officers of the [ENTITY] who were responsible to do pairvi on behalf of the Board were at the cross-purposes with the petitioner and they allowed the petitioner and his transferor [ENTITY] to obtain a decree against the Board on non-existent ground as discussed above.
27. An identical question came up for consideration before Apex Court in the case of [ENTITY] (dead) by L.Rs. v. Jagannath (Dead) by L.Rs. and Ors. wherein in para 7 their lordships ruled thus:
XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX We do not agree with the High Court that 'there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence'. The principle of "finality of litigation" cannot be presesed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person whose case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.
28. The law must be taken to be settled that the fraud vitiates very solemn proceedings of the Court. As it is found that the petitioner has obtained the decree dated 16.10.[SECTION] fraudulently on non-existent ground, it is sufficient to vitiate the entire proceedings of civil court and hold the decree passed by civil court on 16.10.[SECTION], Anx.5, to be nullity. As the decree dated 16.10.[SECTION] is nullity, therefore, it can be ignored wherever and whenever it is sought to be enforced.
29. I am fortified in taking the aforesaid view from the decision rendered by the Apex Court in the case of [PRECEDENT]. where it is ruled that if a decree is nullity then its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon even at the stage of execution and even in collateral proceedings.
30. As a result of the aforementioned discussion, the instant writ petition is hereby dismissed with costs assessed to Rs. 5,000/- with a direction to the petitioner to remove his belongings from the land in question and demolish the existing constructions, if any, within a period of two months from today and on his failure to do so, the [ENTITY] will get vacant possession of the land in question by demolishing the existing constructions over the land in dispute, if any, with liberty either to keep it open or to lease out to some deserving person after charging market price of the land in accordance with law.
31. Office is directed to send a copy of this order to the Secretary, Local Self Government, Government of Rajasthan, Jaipur for information and necessary action as he deems fit and proper.