IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMP(M) No. 790 of 2010 in Civil ReviewNo. 98 of 2010 Judgment reserved on 9th March, 2011 Date of Decision 26th April ,2011 ________________________________________________________ State of H P & another ….Petitioners. Versus Ravinder Kumar and another ….Respondents. ________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 Yes. ________________________________________________________ For the Petitioners: Mr. P.K. Sharma, Additional Advocate General For Respondent No.1: Mr. G.D. Verma, Sr. Advocate with Mr. Romesh Verma, Advocate. ______________________________________________________________ Dev Darshan Sud, J This application has been filed by the State under Section 5 of the Limitation Act praying for condonation of delay in filing review petition against the judgment of this Court dated 27th April, 2007 in CWP No. 569 of 2001, titled Ravinder Kumar vs. State of H.P. and others whereby the petition filed by the respondent was allowed and this Court issued directions to the State to acquire the land, the subject matter of the writ 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes. 2 petition on the allegations in the petition as also taking into consideration the admission of the State that the land was under its occupation without acquisition. The review petition is barred by 1157 days that is to say three years and sixty two days. The reason for instituting the review after such a long lapse of time is sought to be explained by advancing the following reasons: (a) That as per the directions issued by this Court on 27.4.2007 the proceedings of acquisition of land comprised Khasra Nos. 725 and 736 of village Nati (Chintpurni), Amb, District Una were initiated, for which purpose notification under Section 4 of the Land Acquisition Act was issued on 22.7.2008, which was followed by notification under Sections 6 and 7 on 1.11.2008. The State pleads that on conclusion of the proceedings, the Deputy Commissioner had sent the draft award for this land for approval wherein compensation amount was worked out at ` 1,73,24,858/-. Since the amount involved was large, the Director of Elementary Education was requested to examine the case after ascertaining the factual position on the spot. (b) Letters have been purportedly written by this Director on 20.7.2009, 20.10.2009, 21.11.2009, 8.2.2010 and 30.7.2010 stating that 1/12th part of this land is owned and possessed by the State Government. In order to ascertain the factual position, with respect to the possession of land, it was got demarcated from the Revenue Department on 19.6.2009 and it was found that the school building is situated on Khasra No. 3 735 which is different land and does not belong to the petitioner, but to the State Government and the land is sufficient to run the Government Primary School. It was also urged that the land comprising Khasra No. 725 and 736 which was the subject matter of the writ petition is vacant and barren and not in possession of the School Authorities. The application details that during the process of acquisition of land, no damage/alteration has been done by the department nor possession of the same was taken over. It has specifically been pointed out by the Director that the land comprised in Khasra No. 725 and 736 is not required and may be de-notified, as Government Primary School Nari is situated in Khasra No. 735 which is a Government land. (c) Another reason advanced is that the factual position in respect of existence of school building over Khasra No. 735 and sufficiency of Government land for running a primary school came to the notice of the applicant only after receipt of complete record including demarcation report from the field office. It is in these circumstances, the review petition has been preferred after the period of limitation which is admittedly 30 days. The State urges that it is bonafide pursuing the review petition. 2. This application has been opposed by the respondent on a number of grounds. The respondent questions the bonafides of the State more especially in view of the 4 admissions made in the writ petition inter-alia that the State has been in adverse possssion of this land. The entirety of the plea of the State is that the respondent has been guilty of practising fraud/active misrepresentation of facts before the Court in order to obtain an unfair advantage. In these circumstances, it is urged that this Court can itself exercise powers of reveiw to undo injustice and this exercise does not attract the provisions of the Limitation Act. 3. Learned Additional Advocate General relies upon the decision of the Supreme Court in S.P. Chengalvaraya Naidu (dead) by LRs vs. Jagannath (dead) by LRs and others (1994) 1 SCC 1 and United India Insurance Co. Ltd. vs. Rajendra Singh and others, AIR 2000 SC 1165 holding: “14. In S.P. Chengalvaraya Naidu (dead) by L.Rs. vs. Jagnnath (dead) by Lrs. (1994) 2 SCC 1 : (1994 AIR SCW 243 : AIR 1994 SC 853) the two Judges Bench of this Court held: “Fraud avoids all judicial acts, ecclesiastical or temporal” observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the Court is a nullity and nonest in the eyes of law. Such a judgment/decree by the first Court or by the highest Court has to be treated as a nullity by every Court, whether superior or inferior. It can be challenged in any Court even in collateral proceedings.” 15. In Indian Bank v. Satyam fibres (India) Pvt. Ltd., (1996) 5 SCC 550 : (1996 AIR SCW 3281 AIR 1996 SC 2592) another two Judges bench, after making reference to a number of earlier decisions rendered by different High Courts in India, stated the legal position thus: 5 “Since fraud affects the solemnity, regularity and orderliness of the proceedings of the Court and also amounts to an abuse of the process of Court, the Courts have been held to have inherent power to set aside an order obtained by fraud practised upon that Court. Similarly, where the Court is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order.” 16. It is unrealistic to expect the appellant company to resist a claim at the first instance on the basis of the fraud because appellant company had at that stage no knowledge about the fraud allegedly played by the claimants. If the Insurance Company comes to know of any dubious concoction having been made with the sinister object of extracting a claim for compensation, and if by that time the award was already passed, it would not be possible for the company to file a statutory appeal against the award. Not only because of bar of limitation to file the appeal but the consideration of the appeal even if the delay could be condoned, would be limited to the issues formulated from the pleadings made till then. 17. Therefore, we have no doubt that the remedy to move for recalling the order on the basis of the newly discovered facts amounting to fraud of high degree, cannot be foreclosed in such a situation. No Court or tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim.” (at p. 1167-1168) 4. The submission is that even if there is no power of review, the concealment of facts is so blatant that the Court can exercise its powers suo motu for recalling the order passed by it. Three more decisions on which reliance has been 6 placed may be noticed. In N. Khosla vs. Rajlamshmi (dead) and others, (2006) 3 SCC 605 the Court again reiterated this basic principle that fraud avoids all judicial acts, a decree obtained by playing fraud is a nullity and it can be challenged in any proceedings. In Hamza Haji vs. State of Kerala and another (2006) 7 SCC 416 the Court considered in extenso the meaning of what constitutes fraud. It held: "10. It is true, as observed by De Grey, C.J., in R. v. Duchess of Kingston 2 Smith LC 687 that 'Fraud' is an intrinsic, 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. Walcott (1929 AC 482) 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 416-417) 13. In Corpus Juris Secundum, Volume 49, paragraph 265, it is acknowledged that: "Courts of record or of general jurisdiction have inherent power to vacate or set aside their own judgements". In paragraph 269, it is further stated, 7 "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 practiced 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 Edition, Volume 46, paragraph 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 Vs. Kanade (ILR (1882) 6 Bombay 148), it was held that: “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.”………… 8 24. This Court in Bhaurao Dagdu Paralkar v. State of Maharashtra (2005) 7 SCC 605 held that: (SCC p.607) “Suppression of a material document would also amount to a fraud on the court. Although, negligence is not fraud but it can be evidence on fraud.” (at Pp.424-425, 427) To similar effect, is the decision in A.V. Papayya Sastry and others vs. Government of Andhra Pradesh and others, (2007) 4 SCC 221 holding: “21. Now, it is well-settled principle of law that if any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law. Before three centuries, Chief Justice Edward Coke proclaimed: “Fraud avoids all judicial acts, ecclesiastical or temporal.” 22. It is thus settled proposition of law that a judgment, decree or order obtained by playing fruad on the court, tribunal or authority is a nullity and non est in the eye of the law. Such a judgment, decree or order-by the first court or by the final court-has to be treated as nullity by every court, superior or inferior. It can be challenged in any court, at any time, in appeal, revision, writ or even in collateral proceedings. 25. It has been said: fraud and justice never dwell together (fraus et jus nunquam cohabitant); or fraud and deceit ought to benefit none (fraus et dolus nemini patrocinari debent). 26. Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fruad one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collatoral act which vitiates all judicial acts, whether in rem or in personam. The principle of “finality of litigation” cannot be stretched to the extent of an 9 absurdity that it can be utilised as an engine of oppression by dishonest and fraudulent litigants.” (at p. 231-232) The decision also takes note of the principles settled in Indian Bank v. Satyam Fibres (India) (P) Ltd. (1996) 5 SCC 550 holding that “22. The judiciary in India also possesses inherent power, specially under Section 151 CPC, to recall its judgment or order if it is obtained by fraud on court. In the case of fraud on a party to the suit or proceedings, the court may direct the affected party to file a separate suit for setting aside the decree obtained by fraud. Inherent powers are powers which are resident in all courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the constitution of the tribunals or courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseembly behaviour. This power is necessary for the orderly administration of the court’s business.” (at p.562-563)(emphasis supplied) 6. In order to establish this plea, learned Advocate General refers to the pleadings of the parties in the writ petition. The plea as advanced by the State on the principles urged is unimpeachable. Fraud can never be accepted as a tool/means for manipulating the judicial process to obtain a favourable order. What is required to be considered in the present case is as to whether there has been any fraud or active concealment of facts/misrepresentation. I find it extremely difficult to subscribe to this proposition on the pleadings as advanced in this Court in the writ petition. 7. The State has pleaded possession and ownership of the land by stating that it has become owner by way of adverse possession on two counts i.e. by long occupation and also since 10 the notification for acquisition of land was issued in the year 1972, which notification lapsed, the possession of the State had matured into the adverse possession. In this behalf, reply of the State may be reproduced: “2. That in reply to this para it is submitted that the land as entered against Khasra No. 931, 937 and 940 measuring 0-18-54 Hectres situated at village Nari as per the jamabandi for the year 1985-86 is recorded in the ownership of the Badi Devi, petitioner and Smt. Sumitra Devi to the extent of 11/12 share and the remaining 1/12 share in the ownership of the Respondent/State of H.P. and the whole land is recorded in the possession of State of H.P. recorded as Gairmumkin School. Even counting the possession since 1986 the replying respondents are in open, peaceful, hostile, uninterupted, continuous and hostile possession of the land in question which was very much in the knowledge of the petitioner and his predecessor. Rest of the para is not admitted for want of knowledge. However, it is submitted that as per the Jamabndi for the year 1973-74 and 1979-80 the land in question is recorded in the name of Sh. Nihal Chand to the extent of 55 shares and the remaining 5 shares is recorded in the ownership of Gram Panchayat. The copy of the jamabandi for the year 1973-74 and 1979-80 are Annexed and the same are makred as Annexures R-1 and R-II and its English translation are R-I/T and R-II/T respectively. And vide mutation No. 1247 the land to the extent of 1/12 shares has been entered in the name of Himachal Pradesh Govt. which is clear from the note of Jamabandi Annexure R-II & R-II/T. It is further submitted that in the year 1972 the Govt. has issued a notification under Section 4 of Land Acquisition Act to acquire the land which is clear from the copy of notification as issued by the Joint Secretary (Panchayat) to the Govt. of H.P. The copy of the notification showing this facts is also annexed and the same is marked as Annexure R-III. However, after the lapse of statutory period the respondents are in uninterrupted, well known, continuous, hostile possession of the land since more than 12 years and as such the replying respondents reserves 11 right of claiming ownership by way of adverse possession before appropriate forum/court. The petitioner first time represented to the court in October, 2000 which is evident from Annexure P-3.” So much so even the revenue record which is annexed with the petition/reply shows the possession of the State. In these circumstances, it is not possible to hold that the respondent herein (petitioner in the writ petition) has in any manner been privy to concealment or misrepresentation of facts much less fraud. 8. The plea set up by the State was one of adverse possession over the land which was sought to be acquired. The plea was clear and unmistakenable. Acquisition of proprietory rights by the State by way of adverse possession was rejected by this Court. Not only this, the communication dated 7th April, 2007 addressed by the Director Elementary Education to the Principal Secretary (Elementary) Education was placed on the record and considered. There was a clear and unmistakenable recommendation for acquisition of this land. The revenue record, as filed with the writ petition, also shows the possession of the State. 9. In these circumstances, how could it be said that it was the respondent (petitioner in the writ petition) who misled the Court into passing the judgment when it was the State which admitted that land was in the possession of the State. In fact, if the pleading of the State in the writ petition is considered, proceedings under the Land Acquisition Act had been initiated for this very land in 1972 which notification dated 4.10.1972 lapsed (Annexure R-3 of the writ petition) and on this count also, 12 adverse possession was claimed. In these circumstances how could there have been any misrepresentation of facts by the petitioner? The genesis of the entire case for review seems to be that considering the amount of compensation involved in the acquisition proceedings, the State would now want to withdraw after having utilised the land of respondents continuously (petitioner in the writ petition) prior to 1972. What I find is that the State has set up a plea which is not only untenable but unacceptable. If the land is vacant and unutilized by the State what was the necessity to plead in the writ petition that the State had become owner of this land by way of adverse possession when this land is not required by the State? There was no logic to claim ownership of this land and deny the petitioner’s right to exercise their ownership rights thereon. So much so, after decision of the writ petition, proceedings were undertaken by the State for which purpose notification under Section 4 and 17 (iv) of the Land Acquisition Act was issued on 22.7.2008, followed by notification under Section 17 (1) on 1st November, 2008 and draft award was also prepared. Where was the State sleeping at that time? It is now the so called demarcation of the Patwari which purportedly brought these facts to the notice of State and which otherwise should have been within its knowledge. Reasons set out for condonation of delay do not fall within the forecorners of the law justifying the invocation of Section 5 of the Limitation Act. On the question of fraud, I have already held that there has been no misrepresentation of facts by the petitioner. If 1/12th portion of the land is owned by the State Government then it is obvious that this part of land cannot be acquired. Which part of 13 land was owned by the State Government is not decided in the writ petition as no partition has been effected. 10. I may note the decision relied upon by the respondent in Balwant Singh (dead) vs. Jagdish Singh and others (2010) 8 SCC 685 on the question of the provision of Section 5 of the Limitation Act. The Court held: “18. In Union of India v. Ram Charan AIR 1964 SC 215 a three-Judge Bench of this Court was concerned with an application filed under Order 22 Rule 9 CPC for bringing the legal representatives of the deceased on record beyond the prescribed period of limitation. The Court expressed the view that mere allegations about belated knowledge of death of the opposite party would not be sufficient. The Court applied the principle of “reasonable time” even to such situations. While stating that the Court was not to invoke its inherent powers under Section 151 CPC it expressed the view that the provisions of Order 22 Rule 9 CPC should be applied. The Court held as under: (Ram Charan case, AIR pp. 219-20, paras 8, 10 & 12) “8 There is no question of construing the expression ‘sufficient cause’ liberally either because the party in default is the Government or because the question arises in connection with the impleading of the legal representatives of the deceased respondent. The provisions of the Code are with a view to advance the cause of justice. Of course, the court, in considering whether the appellant has established sufficient cause for his not continuing the suit in time or for not applying for the setting aside of the abatement within time, need not be overstrict in expecting such proof of the suggested cause as it would accept for holding certain fact established, 14 both because the question does not relate to the merits of the dispute between the parties and because if the abatement is set aside, the merits of the dispute can be determined while, if the abatement is not set aside, the appellant is deprived of his proving his claim on account of his culpable negligence or lack of vigilance. This, however, does not mean that the court should readily accept whatever the appellant alleges to explain away his default. It has to scrutinise it and would be fully justified in considering the merits of the evidence led to establish the cause for the appellant’s default in applying within time for the impleading of the legal representatives of the deceased or for setting aside the abatement……………. 19. In P.K. Ramachandran v. State of Kerala (1997) 7 SCC 556 where there was delay