IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD THE HON’BLE SRI JUSTICE A.V.SESHA SAI Review W.P.M.P (SR) No.166975 of 2013 in W.P.No.11681 of 2000 & W.P.No.22184 of 2009 Date: 21.8.2014 Between The Bagh Amberpet Welfare Society (Regd.No.599/81), Bathkammakunta, Shivam Road, Bagh Amberpet, Hyderabad and others. Petitioners And State of A.P., rep. by its Secretary, Municipal Administration, Secretariat Buildings, Hyderabad and others. Respondents * THE HON’BLE SRI JUSTICE A.V.SESHA SAI + Review W.P.M.P (SR) No.166975 of 2013 in W.P.No.11681 of 2000 & W.P.No.22184 of 2009 % 21-8-2014 # The Bagh Amberpet Welfare Society (Regd.No.599/81), Bathkammakunta, Shivam Road, Bagh Amberpet, Hyderabad and others. Petitioners Vs. $ State of A.P., rep. by its Secretary, Municipal Administration, Secretariat Buildings, Hyderabad and others. Respondents ! Counsel for the Petitioners: Sri VEDULA SRINIVAS Counsel for the Respondents 12 to 14 : Sri P.SRI RAM Counsel for Respondents 16 to 19 : G.P. for Land Acquisition < Gist: > Head Note: ? Cases referred: 1. (2006) 7 SCC 416 2. (2005) 6 SCC 149 3. AIR 1994 SC 853 4. (2002) 4 SCC 388 5. (2000) 1 SCC 533 THE HON’BLE SRI JUSTICE A.V.SESHA SAI Review W.P.M.P (SR) No.166975 of 2013 in W.P.No.11681 of 2000 & W.P.No.22184 of 2009 COMMON ORDER: Since the subject matter in Review in W.P.No.11681 of 2000 and W.P.No.22184 of 2009 is the same and the issues are inter-related, this Court deems it appropriate to dispose of these two cases by way of this common order. 2. The facts and circumstances, leading to the filing of the review petition in W.P.No.11681 of 2000 are as follows: 2.1 Respondents 1 to 4 in the review who are no more now filed W.P.No.11681 of 2000, seeking to declare the land acquisition proceedings initiated vide draft notification and draft declaration dated 4.6.1975 and 25.5.1978 issued under Sections 4(1) and 6 of the Land Acquisition Act, 1894 as lapsed to the extent of the land, admeasuring Ac.1.22 guntas situated in S.Nos.572 (Ac.0.07 gts.), 611 (0.21 gts.) and 612 (0.34 gts.) of Bagh Amberpet village, Hyderabad. 2.2 This Court, by way of an order dated 13.8.2007, allowed the said writ petition and the operative portion of the said order reads as under: “Hence, this Court is of the view that the Notification dated 5.6.1975 issued under Section 4(1) of the Act insofar as the lands of the petitioners are concerned is hereby quashed. If the respondents so chose, they may issue a fresh Notification under Section 4(1) of the Act, complete the entire land acquisition proceedings and pay compensation to the petitioners as fixed by the Land Acquisition Officer, otherwise, the lands shall be re-delivered to the petitioners. This exercise shall be done within a period of eight weeks from the date of receipt of a copy of this order”. 2.3 Seeking review of the above said order, the present review application under Order 47 Rule 1 read with Section 114 CPC has been filed, raising a number of grounds. Resisting the review, a counter affidavit has been filed by the Respondents 12, 13 and 14 who are the legal representatives of the deceased 3rd petitioner in W.P.No.11681 of 2000. 3. Coming to W.P.No.22184 of 2009, it is a writ petition filed by the review petitioners in W.P.No.11681 of 2000, questioning the proceedings of the Additional Commissioner (Estates), GHMC, Hyderabad bearing LR.No.63/EO/E1/GHMC/2009 dated 19.6.2009 issued obviously as a consequence of the orders of this Court in W.P.No.11681 of 2000 dated 13.8.2007 which are the subject matter of the review now. This court, while issuing rule nisi, on 15.10.2009 in W.P.M.P.No.28807 of 2009 granted order of status quo with respect to the possession of the parties. Responding to the rule nisi issued by this Court, a counter affidavit dated 13.4.2011 is filed on behalf of Respondents 2 and 3/GHMC. A reply dated 12.7.2011 is also filed by the petitioners in W.P.No.22184 of 2009. 4. Contentions of Sri Vedula Srinivas, learned counsel for review petitioners in W.P.No.11681 of 2000 and petitioners in W.P.No.22184 of 2009 4.1 W.P.No.11681 of 2000 was filed by the petitioners therein by suppressing the facts and by making wrong submissions before this Court and the said writ petition was decided on the basis of the assertions made by the writ petitioners in W.P.No.11681 of 2000 and this Court was kept in dark regarding the facts pertaining to the land acquisition by the GHMC under G.O.Rt.No.68 dated 4.6.1975. 4.2 The entire land acquisition proceedings, relating to construction of housing project by HUDCO was eventually upheld by the Hon’ble Apex Court and the petitioners in W.P.No.11681 of 2000 are estopped from questioning the said proceedings and the land acquisition proceedings initiated vide draft notification dated 4.6.1975 was questioned after a lapse of 25 years and the said delay was not properly explained by the petitioners in W.P.No.11681 of 2000. 4.3 This Court failed to take note of the issues concluded before the Hon’ble Supreme Court, which resulted in miscarriage of justice. 4.4 This Court was not apprised of the facts that the entire land under acquisition had been made into plots and the same had been allotted to the beneficiaries and the possession had also been delivered. 4.5 The petitioners in W.P.No.11681 of 2000 did not intentionally implead the review petitioners in the said writ petition. 4.6 There was no inordinate delay in passing of the award and the matter was pending before the Courts for more than two decades. 4.7 This Court was kept in dark about the representation submitted by the petitioners in W.P.No.11681 of 2000 dated 20.10.1999 addressed to the Principal Secretary to Government, Housing and Municipal Administration Department, saying that their land admeasuring Ac.1.22 gts. also forms part of the land in respect of which the Hon’ble Supreme Court passed orders on 14.9.1999. 5. To bolster his submissions, the learned counsel for the review petitioners and the petitioners in W.P.No.22184 of 2009 places reliance on the judgments of the Hon’ble Supreme Court in Hamza Haji v. State of Kerala[1], State of A.P. v. T.Suryachandra Rao[2] and S.P. Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by L.Rs.[3]. 6. Contentions of Sri P.Sri Raghuram, learned senior counsel 6.1. W.P.No.22184 of 2009 is not maintainable as the petitioners therein, by way of amendment in W.P.M.P.No.3495 of 2013, are seeking to assail the earlier orders of this Court in W.P.No.11681 of 2000 dated 13.8.2007 and this Court has no jurisdiction to set aside the said earlier orders. 6.2. There is absolutely no fraud as alleged by the review petitioners nor it is a case of suppression of any information and in fact the subject land is not a part of the entire extent. 6.3. There is no estoppel against the title and the representation dated 20.10.1999 made is of no consequence nor has any impact on the adjudication of the present issue before this Court. 6.4. The award in the instant case is manipulated. 6.5. The review earlier filed by the Government vide W.P.M.P.No.29679 of 2007 was dismissed and the present review is a typical example of abuse of process of law. 6.6. In support of his case, the learned senior counsel places reliance on the judgments of the Hon’ble Supreme Court in Rupa Ashok Hurra v. Ashok Hurra & another[4]. 7. Contentions of Sri R.Radhakrishna Reddy, learned Standing Counsel for GHMC. 7.1 The very basis for issuing the impugned notice in W.P.No.22184 of 2009 is the order passed by this Court in W.P.No.11681 of 2000 and the GHMC is strictly adhering to the directions of this Court. 8. In the light of the respective pleadings, contentions and submissions, now the questions which boil down for consideration of this Court are; (i) Whether the review petitioners herein have made out a case, warranting any interference of this Court under the provisions of Order 47 Rule 1 read with Section 114 of CPC ? (ii) Whether the review application is maintainable ? (iii) Whether the review petitioners/petitioners in W.P.No.22184 of 2009 are entitled for any relief from this Court ? 9. The material available on record reveals that the State Government pressed into service the provisions of Land Acquisition Act, 1894 (hereinafter called ‘the Act’) and issued a draft notification under sub-Section (1) of Section 4 of the Act vide G.O.Rt.No.68 Health, Housing and Municipal Administration Department dated 4.6.1975 for the purpose of acquiring a total extent of Ac.21.00 gts. situated in Sy.Nos.567/1, 567/2, 615, 561, 563, 560, 564, 566, 568, 569, 570/1, 571, 572, 611, 612, 613, 614 and 578 of Bagh Amberpet village, Hyderabad for housing project under HUDCO scheme at the instance of Municipal Corporation of Hyderabad. Thereafter, the State Government issued a draft declaration under Section 6 of the Act for an extent of Ac.20- 33 gts. vide G.O.Rt.No.41, Housing, Municipal Administration and Urban Development Department dated 25.4.1978. The review petitioners society which came into being on 15.4.1981 paid a sum of Rs.40,20,649/- to the MCH towards the cost of the land of Ac.20.33 gts. under acquisition. One Tulasi Cooperative Society in whose favour an agreement of sale was said to have been executed by the original owner Sri Syed Azam and Sri Syed Azam himself filed W.P.Nos.4485 & 5360 of 1981 before this Court questioning the proceedings initiated under the provisions of the Land Acquisition Act. In W.P.No.4455 of 1981, the review petitioner herein was arrayed as Respondent No.3 and by virtue of judgment dated 28.1.1982, the said cases were dismissed by this Court holding the proceedings as valid. As against the said judgment, W.A.Nos.170 and 171 of 1982 were filed and the same were allowed by a Full Bench of this Court on 2.3.1983, quashing the draft notification and draft declaration. As against the same, Civil Appeal Nos.5784-85 of 1983 were filed by the petitioners and in the meanwhile the State Government, vide G.O.Ms.No.946 dated 23.6.1983, cancelled the exemption granted earlier in favour of Syed Azam vide G.O.Ms.No.4293 dated 11.9.1980 under Section 20(1)(a) of the Urban Land Ceiling Act, 1976. W.P.No.5498 of 1983 filed by Syed Azam against the said order was dismissed on 30.6.1988 on the ground of pendency of above Civil Appeals before the Hon’ble Supreme Court. Subsequently, S.L.P (Civil) No.1679 of 1989 was filed against the said order before the Hon’ble Apex Court and W.P.No.6500 of 1983 before this Court was also transferred to the Supreme Court and an order was passed by the Hon’ble Supreme Court on 17.8.1990, remanding the matters back to this Court and after remand, this Court passed orders dismissing W.A.Nos.170 and 171 of 1982 and disposing of W.P.Nos.6500 and 5498 of 1983 vide orders dated 21.11.1992 and the operative portion of the said orders reads as under: “1. The land acquisition proceedings covered by the Section 4(1) notification issued in G.O.Rt.No.68 dated 4.6.1975 in respect of Ac.18-03 guntas of land shall revive and be completed as expeditiously as possible preferably within three months from today, the beneficiaries being the 374 members of the Bagh Amberpet Welfare Association who have already remitted a total sum of Rs.40,20,649.04. 2. The compensation amount the land owners are entitled to, shall be limited only to Rs.25,49,131.75 and nothing more. 3. M/s Tulsi Cooperative Housing Society is at liberty to work out its rights vis-à-vis the land owners. 4. The applications filed under Section 20 of the ULC Act seeking exemptions from the operation of the Act and now pending with the Government since 1976 shall be dispose dof as indicated supra. The two statements containing the details about the payment of compensation under the L.A. Act and the ULC Act enclosed to the Government Memorandum No.1472/UC.II/1(1)/83-12 dated 16.10.1992 addressed to the Government Pleader shall form part of the record”. 10. The above said orders were challenged by Tulsi Cooperative Housing Society and Syed Azam before the Hon’ble Supreme Court in Civil Appeal Nos.6986-87 of 1994, 6988-91 of 1994 and 6992-93 of 1994 and the same were disposed of by the Hon’ble Supreme Court vide judgment dated 14.9.1999, reported in Tulsi Cooperative Housing Society, Hyderabad and others v. State of A.P. and others[5] and the operative portion of the said judgment at paragraph 27 reads as follows: “(I) The directions contained in the judgment of the High Court are set aside; (II) The land acquisition proceedings covered by the Notification under Section 4(1) of the Acquisition Act issued in G.O. Rt. No. 68 dated 4.6.75 in respect of 18 acres 03 guntas of land stand revived and shall be completed as expeditiously as possible within a period of three months from today; (III) The concerned authorities constituted under Acquisition Act shall decide the compensation payable to the land owner in accordance with the provisions of the Act.; (IV) The Government shall nominate a Committee comprising at least three Secretaries to the Government for distributing the acquired land equitably among deserving persons in order to carry out the purposes of the acquisition and to balance the equities between various persons whether they belong to one or the other society or are not members of either society.; (V) M/s. Tulsi Cooperative Housing Society is at liberty to work out its rights as against the land owner in appropriate proceedings; (VI) Applications under Section 20 of the Ceiling Act seeking exemption from the operation of the Act said to be pending with the Government since 1976 shall be disposed of in accordance with law as expeditiously as possible and preferably within a period of three months from today.” 11. Thereafter, the Special Deputy Collector, Land Acquisition, MCH passed an award vide proceedings A2/452/79 dated 22.6.2000, referring the matter under Sections 30 and 31(2) of the Land Acquisition Act to the City Civil Court, Hyderabad for determination of title and payment of the awarded amount to the rightful owners. A perusal of the award placed before this Court, in clear and unequivocal terms, discloses the participation of the petitioners in W.P.No.11681 of 2000 during award proceedings. The said reference was numbered as L.A.O.P.No.19 of 2000 on the file of the Court of the I Senior Civil Judge, City Civil Court, Hyderabad. The petitioners in W.P.No.11681 of 2000 figured as Claimant Nos.25, 19, 14 and 15 respectively and the Claimant Nos.3, 6, 11, 12, 13, 16 and 17 contested the said L.A.O.P.No.19 of 2000 and Claimant No.25 was the legal representative of Claimant No.11 who is petitioner No.1 in W.P.No.11681 of 2000. Eventually, by way of order dated 23.10.2007, the said L.A.O.P.No.19 of 2000 was dismissed on the ground that the claimants failed to prove their title to the property. Unfortunately, in the affidavit filed in support of W.P.No.11681 of 2000, these particulars were not mentioned, which obviously resulted in passing the order under review. 12. Another significant aspect, which needs mention at this juncture is that on 20.10.1999 the petitioners in W.P.No.11681 of 2000 submitted a representation to the State Government and the last paragraph of the said representation reads as under: “We, therefore pray the Government kindly to restrict the L.A. proceedings to extent of Acres 16.28 belonging to Syed Azam and others leaving our land admeasuring Acres 1.30 so that we the small farmers and poor citizens can make a living as we have no other source and to meet the ends of justice if necessary by filing an affidavit before the Supreme Court of India, for amending the order of Supreme court of India, at 2nd instruction at page 24, for deleting our land admeasuring to an extent of Acres 1.30 guntas out of Acres 18.03 guntas, since the matter is sub-judice”. 13. The above said aspect also speaks volumes with regard to conduct and bonafides on the part of the petitioners in W.P.No.11681 of 2000. The above narration manifestly and categorically demonstrates that even before institution of W.P.No.11681 of 2000, the entire proceedings, including passing of award and the orders in L.A.O.P.No.19 of 2000 attained finality. Absolutely there is no plausible explanation forthcoming as to why these material particulars were not furnished in the affidavit filed in support of W.P.No.11681 of 2000. 14. At this juncture, it may be appropriate to refer to the judgments relied upon by the learned counsel for review petitioners in W.P.No.11681 of 2000 and petitioners in W.P.No.22184 of 2009. 14.1 In Hamza Haji v. State of Kerala (1 supra), the Hon’ble Supreme Court at paragraphs 9 to 29 held as follows: “9. It is contended on behalf of the appellant that the High Court had far exceeded its jurisdiction and has acted illegally in setting aside the order of the Forest Tribunal which had become final long back and which had been given effect to, that too, by the intervention of the High Court. It is submitted that the High Court had no jurisdiction or authority to set at naught the two earlier orders of Division Benches of coequal strength and that too at this belated stage and thus the order suffered from patent illegality. On facts it was contended that the finding that the order was procured by the appellant by playing a fraud on the Tribunal was not justified and no occasion arose for the High Court to exercise its jurisdiction under Article 215 of the Constitution of India, assuming it had such a jurisdiction to interfere with the earlier orders. On behalf of the State it is contended by the learned Senior Counsel that fraud vitiates everything, that if an order is vitiated by fraud, it does not attain finality and it can be set at naught by a proper proceeding and on the facts and in the circumstances of the case, the High Court was fully justified in setting aside the order of the Forest Tribunal. It is submitted that the High Court has only followed the ratio of the decisions of this Court and there is nothing illegal in the decision rendered by the High Court. On facts, fraud was writ large and this was a case where the High Court ought to have interfered and the interference made was fully justified. Counsel further submitted that since the appellant had come with unclean hands and had obtained a relief by playing a fraud on the Court, this was a fit case where this Court should decline to exercise its discretionary jurisdiction under Article 136 of the Constitution of India, sought to be invoked by the appellant. It was submitted that the appeal deserved to be dismissed. 10. It is true, as observed by De Grey, C.J., in R. v. Duchess of Kingston1 that: “ ‘Fraud’ is an extrinsic, collateral act, which vitiates the most solemn proceedings of courts of justice. Lord Coke says it avoids all judicial acts, ecclesiastical and temporal.” 11. In Kerr on Fraud and Mistake, it is stated that: “In applying this rule, it matters not whether the judgment impugned has been pronounced by an inferior or by the highest court of judicature in the realm, but in all cases alike it is competent for every court, whether superior or inferior, to treat as a nullity any judgment which can be clearly shown to have been obtained by manifest fraud.” 12. It is also clear as indicated in Kinch v. Walcott2 that it would be in the power of a party to a decree vitiated by fraud to apply directly to the court which pronounced it to vacate it. According to Kerr: “In order to sustain an action to impeach a judgment, actual fraud must be shown; mere constructive fraud is not, at all events after long delay, sufficient … but such a judgment will not be set aside upon mere proof that the judgment was obtained by perjury.” (See 7th Edn., pp. 416-17) 13. In Corpus Juris Secundum, Vol. 49, para 265, it is acknowledged that: “Courts of record or of general jurisdiction have inherent power to vacate or set aside their own judgments.” In para 269, it is further stated: “Fraud or collusion in obtaining judgment is a sufficient ground for opening or vacating it, even after the term at which it was rendered, provided the fraud was extrinsic and collateral to the matter tried and not a matter actually or potentially in issue in the action.” It is also stated: “Fraud practised on the court is always ground for vacating the judgment, as where the court is deceived or misled as to material circumstances, or its process is abused, resulting in the rendition of a judgment which would not have been given if the whole conduct of the case had been fair.” 14. In American Jurisprudence, 2nd Edn., Vol. 46, para 825, it is stated: “Indeed, the connection of fraud with a judgment constitutes one of the chief causes for interference by a court of equity with the operation of a judgment. The power of courts of equity in granting such relief is inherent, and frequent applications for equitable relief against judgments on this ground were made in equity before the practice of awarding new trials was introduced into the courts of common law. Where fraud is involved, it has been held, in some cases, that a remedy at law by appeal, error, or certiorari does not preclude relief in equity from the judgment. Nor, it has been said, is there any reason why a judgment obtained by fraud cannot be the subject of a direct attack by an action in equity even though the judgment has been satisfied.” 15. The law in India is not different. Section 44 of the Evidence Act enables a party otherwise bound by a previous adjudication to show that it was not final or binding because it is vitiated by fraud. The provision therefore gives jurisdiction and authority to a court to consider and decide the question whether a prior adjudication is vitiated by fraud. In Paranjpe v. Kanade3 it was held that: (ILR p. 148) “It is always competent to any court to vacate any judgment or order, if it be proved that such judgment or order was obtained by manifest fraud;” 16. In Lakshmi Charan Saha v. Nur Ali4 it was held that: (ILR p. 936) “[T]he jurisdiction of the Court in trying a suit [questioning the earlier decision as being vitiated by fraud,] was not limited to an investigation merely as to whether the plaintiff was prevented from placing his case properly at the prior trial by the fraud of the defendant. The Court could and must rip up the whole matter for determining whether there had been fraud in the procurement of the decree.” 17. In Manindra Nath Mittra v. Hari Mondal5 the Court explained the elements to be proved before a plea of a prior decision being vitiated by fraud could be upheld. The Court said: (AIR p. 127) “With respect to the question as to what constitutes fraud for which a decree can be set aside, two propositions appear to be well established. The first is that although it is not permitted to show that the Court (in the former suit) was mistaken, it may be shown that it was misled, in other words, where the Court has been intentionally misled by the fraud of a party and a fraud has been committed upon the Court with the intention to procure its judgment, it will vitiate its judgment. The second is that a decree cannot be set aside merely on the ground that it has been procured by perjured evidence:” 18. The position was reiterated by the same High Court in Esmile Uddin Biswas v. Shajoran Nessa Bewa6. It was held that: (AIR p. 650) “[I]t must be shown that the fraud was practised in relation to the proceedings in Court and the decree must be shown to have been procured by practising fraud of some sort, upon the Court:” 19. In Nemchand Tantia v. Kishinchand Chellaram (India) Ltd.7 it was held that: (CWN p. 740) “A decree can be reopened by a new action when the court passing it had been misled by fraud, but it cannot be reopened when the court is simply mistaken; when the