Madrasdated High Court · 2010

persons on 22.08.1968 by holding that the lands having been used forraising commercial crops, the exemption cannot be granted.5.Writ Petitions were filed jointly by both LateShri.G.Govindasamy and Shri.G.Varadaraj in W.P.Nos.3880 and 3881 of1968. The Writ Petitions filed by the above said persons weredismissed by this Court in and by its order dated 03.02.1970 byholding that the rejection of the application made by them forretaining the lands under Section 27 of the Act was just and proper.The Authorised Officer (Land Reforms), Coimbatore, in and by hisproceedings dated 26.11.1974 excluded the lands which were thesubject matter of the Writ Petitions from the holdings of LateShri.G.Govindasamy and Shri.G.Varadaraj on the ground that they havebeen in possession and enjoyment of the petitioner Trust. Thereafter,the orders have been passed on the holdings of the petitioner Truston 21.12.1974.6.Late Shri.G.Govindasamy and Shri.G.Varadaraj gave lettersof affirmation of Entrustment Deed on 15.07.1978 acknowledging theoral gift made by them earlier in favour of the petitioner Trust. Arequest was made by the petitioner Trust in the month of June, 1986seeking permission to sell the lands including the lands which arethe subject matter of the Writ Petition. On receipt of the saidletter, the Authorised Officer had issued a notice under Section 20-Aof the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act,1961 to show cause as to why the penalty for future acquisition incontravention of the provisions of the Act cannot be imposed.Thereafter, the Assistant Commissioner (Land Reforms), namely, therespondent No.2 issued a notice of hearing.7.A Writ Petition was filed in W.P.No.12838 of 1988 by thepetitioner, seeking to quash the proceedings dated 24.06.1988. TheWrit Petition was transferred to the Tamil Nadu Land Reforms SpecialAppellate Tribunal and numbered as T.R.P.No.439 of 1991. The SpecialAppellate Tribunal in and by its order dated 30.06.1994 has passed anorder directing the petitioner Trust to give a reply to the showcause notice given under Section 20-A of the Act. The Tribunal hadalso observed that the action has been taken both under Section 20-Aand 10(5) of the Act. The legal heirs of Late Shri.G.Varadaraj,cancelled the affirmation deed by a registered document on17.07.1996. Similarly, the Late Shri.G.Govindasamy also cancelled theaffirmation deed on 25.03.1992.8.A suit was filed in O.S.No.112 of 1993 by the petitioneragainst the seventh respondent herein who is the wife of the LateShri.G.Govindasamy seeking the relief of declaration and theconsequential permanent injunction. The said suit was filed basedupon the title on the alleged gift deed and adverse possession. Thesuit was decreed exparte on 28.09.1994 against which an applicationwas filed to set aside and the same is pending disposal. https://hcservices.ecourts.gov.in/hcservices/

9.The respondent No.2 after considering the entirematerials available on record was pleased to hold that some of thelands are not brought under cultivation, the legal heirs of the LateShri.G.Govindasamy are in possession, mutations have been made in therevenue records including pattas and the affirmation deed has beencancelled. Similarly, reasons have been assigned in so far as thelands said to have been donated by Late Shri.G.Varadaraj isconcerned. Accordingly, it was held that the transaction between thedonors, namely Late Shri.G.Varadaraj and Shri.G.Govindasamy on theone hand and the petitioner on the other hand are binami transactionsto defeat the provisions of the Act. As a consequence thereon, thelands were directed to be included in the holdings of the LateGovindaswamy and Shri.G.Varadaraj.10.A revision was filed by the petitioner, challenging thesaid order of the respondent No.2 before the respondent No.1. Therespondent No.1 in and by his proceedings in D1/R.P.No.9/99(L.Ref.)dated 10.03.2000 was pleased to dismiss the revision filed by thepetitioner. While hearing the revision petition, the petitioner wasnot heard, as the petitioner's counsel was continuously absent fortwo occasions, even though he was intimated along with the documents.In fact the matter was adjourned to several dates. When it was takenup for hearing on 13.01.2000, a representation was made by thepetitioner's counsel seeking adjournment by filing a memo.Thereafter, the matter was adjourned on two occasions. Even thoughthe petitioner's counsel received the notice there was norepresentation. Therefore an order was passed on merits with theavailable materials. Challenging the said order, the present writpetition has been filed.11.The order impugned has been passed on 10.03.2000. Evenprior to the order impugned, the properties have been included in theholdings of the respondents 3 to 8. They offered alternative lands inMayiladumparai and accordingly they have been taken as excess lands.The lands have been taken possession by the Tahsildar and distributedto the needy people. There was also a partition between the legalheirs of Late Shri.G.Varadaraj on 09.04.2001 including the propertiesinvolved in the Writ Petition which was followed by sub-division oflands. Thereafter, the present writ petition has been filed on12.12.2002.12.Submissions of the learned counsel for the petitioner:12.1.Shri.V.Ayyadurai, learned counsel appearing for thepetitioner submitted that the original owners of LateShri.G.Govindasamy and Shri.G.Varadaraj gifted the lands in the year1960. A letter was also given by Late Shri.G.Govindasamy dated14.01.1960. A resolution was passed by the petitioner accepting thesame and it was communicated to Late Shri.G.Govindasamy. In theproceedings dated 26.11.1974, the lands have been excluded from the https://hcservices.ecourts.gov.in/hcservices/ holdings of Late Shri.G.Govindasamy and Shri.G.Varadaraj. The landshave been included in the holdings of the petitioner. The above saidpersons executed the affirmation of entrustment of trust property on15.07.1978 by registered deeds. Therefore, it is not open to therespondents 3 to 8 to contend that there was no oral gift.12.2.The proceedings dated 26.11.1974 have become final andthe second respondent does not have any power or authority to reviewthe same. Section 2 of the Tamil Nadu Land Reforms (Fixation ofCeiling on Land) Act, 1961 came into force with effect from01.03.1972. It also cannot be applied to an existing Trust. Section 3(19) speaks about the possession of land by the owner which includesthe petitioner who enjoy the property as a owner. Section 15 of theAct which provides for power to rectify bonafide mistakes cannot beexercised. Section 20-A of the Act has got no application, sincethere is no future acquisition made by the petitioner.12.3.The deed of confirmation entered into on 15.07.1978travels back to the original gift. The decree obtained by thepetitioner before the Civil Court not only binds the respondent No.7but also the other respondents. The decree is a judgment in rem. Thegift was given much prior to the coming into force of the Act and theorder impugned passed by the respondent No.1 will have to be setaside in as much as sufficient opportunity has not been given to thepetitioner. In support of his contention, the learned counsel hasrelied upon the judgment of the Honourable Supreme Court inA.G.VARADARAJULU v. STATE OF TAMIL NADU [(1998) 4 SCC 231] andsubmitted that what is required under Section 3(19) is an element oftitle. Therefore, the learned counsel submitted that the WritPetition will have to be allowed.13.Submissions of the respondents 1 and 2:13.1.Shri.P.Muthukumar, learned Government Advocateappearing for the respondents submitted that the order impugned hasbeen passed by the first respondent after affording number ofopportunities to the petitioner. It is further submitted that thepower has been correctly exercised by the respondents in as much asthe holdings cannot be recognised based upon the oral gift. Thefactual findings given by the respondents shall not be disturbed bythis Court while exercising the power under Article 226 of theConstitution of India. The consequences of a transfer contrary to theprovision has been stipulated under Section 20-A of the Act itself.The subsequent development as alleged by the respondents could not beconfirmed and in any case liberty may be given to the respondents 1and 2 to proceed in accordance with law in pursuant to the impugnedorder.14.Submissions of the respondents No.4 and 8:14.1.Shri.Rajnish Pathiyil, learned counsel appearing forthe respondents No.4 and 8 submitted that the respondents have got https://hcservices.ecourts.gov.in/hcservices/ all the properties changed in the revenue records in pursuant to theproceedings under Section 10(5), 12 and 14 of the Act. The excesslands have been acquired and distributed to the needy persons. Therewas a partition between the family on 09.04.2001 by a registereddeed. The properties have been subdivided thereafter on 24.06.2002.The Writ Petition has been filed after a period of two years and 8months from the date of the order impugned. There is no explanationfor the delay in filing the Writ Petition. The subsequent events willhave to be taken into consideration while granting the relief soughtfor.15.Submissions of the respondent No.5:15.1.Shri.P.K.Rajagopal, learned counsel appearing for therespondent No.5 submitted that the action under Section 20-A of theAct is perfectly valid in as much as the mandate of Section 19 of theAct was not complied with. The petitioner himself made an applicationfor the sale of land and therefore, it is not open to it to challengethe authority of the respondent No.2. No suit has been filed by thepetitioner against the legal heirs of Late Shri.G.Varadaraj. The suitwas filed and decreed exparte only against one of the legalrepresentatives of the Late Shri.G.Govindasamy.16.Submissions of the respondent No.6:16.1.Shri.K.Doraisami, learned counsel appearing for therespondent No.6 submitted that there is no gift as alleged by thepetitioner. Even assuming that there is a gift, the same is a voidtransaction in the teeth of the provisions contained in Section 14and 17 of the Indian Registration Act, 1908 as well as the Section123 of the Transfer of Property Act, 1882. The suit filed by thepetitioner was only against the seventh respondent and not others.The deed of affirmation was later withdrawn by LateShri.G.Govindasamy himself. The power has been exercised by therespondent No.2 under Section 20-A as well as Section 15 of the Act. 16.2.The proceedings which are the subject matter of theWrit Petition filed in W.P.No.3881 of 1968 would falsify the case ofthe petitioner. While construing the provisions of a social welfarelegislation which aims at equitable distribution of lands, the Courtshould lean in favour of giving effect to the enactment. Section 15of the Act which deals with bonafide mistakes gives ample powers tothe respondent No.2 to take appropriate action. A construction whichmakes the provision otiose should be avoided. A mere quoting of awrong provision would not vitiate the proceedings. The petitioner wasgiven sufficient opportunities before the respondents. In support ofhis contention, the learned counsel has relied upon the judgment inAUTHORISED OFFICER v. S. NAGANATHA AYYAR [(1979) 3 SCC 466], LANDCOMMISSIONER v. MANJIYA PILLAI [1994 SUPP(2) SCC 464], GOMTIBAI(DEAD) THROUGH LRs. AND OTHERS v. MATTULAL (DEAD) THROUGH LRS. [AIR1997 SC 127], and GOVERNMENT OF UNION TERRITORY OF PONDICHERRY v.MOHAMMED HUSSAIN [(1994) 5 SCC 121] and submitted that the WritPetition will have to be dismissed. https://hcservices.ecourts.gov.in/hcservices/

17.Submissions of the respondent No.7:17.1.Shri.T.R.Rajagopal, learned senior counsel appearingfor the respondent No.7 submitted that the suit filed by thepetitioner was decreed exparte over which an application filed to setaside is pending, will not bar the authorities to function under theAct. Such a decree is a decision between the parties and not againstthe respondents 1 and 2. The plea of oral gift has been set up by theparties considering the factual situation prevailed at that point oftime. There is no reference in the deed of affirmation about theletter dated 14.01.1960. There is no reference also in theproceedings of the respondent No.2 dated 26.11.1974. When aparticular action done was outside the purview of the Act then thepower is available to the authorities to rectify the same.18.Heard Shri.V.Ayyadurai for Shri.R.Karthikeyan, learnedcounsel appearing for the petitioner, Shri.P.Muthukumar, learnedGovernment Advocate, appearing for the respondents 1 and 2,Shri.Rajnish Pathiyil, learned counsel appearing for the respondents4 and 8, Shri.P.K.Rajagopal, learned counsel appearing for therespondent No.5, Shri.K.Doraisami for Srimathi Muthumani Durasami,learned counsel for the respondent No.6 and Shri.T.R.Rajagopal,learned senior counsel appearing for the respondent No.7.19.The facts involved as narrated above are not in dispute.It is the case of the petitioner that the oral gifts have been madeby the original owners, namely Late Shri.G.Govindasamy andShri.G.Varadaraj. Documents were also executed by the above said twopersons in favour of the petitioner on 15.07.1978. However, it is tobe seen that the above said two persons made an application underSection 27 of the Act, as its stood at the relevant point of timeseeking retention of lands in excess of ceiling area. The applicationfiled by them was rejected by the Tamil Nadu Land Board on 22.08.1968.20.Challenging the same, separate Writ Petitions have beenfiled in W.P.Nos.3880 and 3881 of 1968. This Court in and by itsorder dated 03.02.1970 has dismissed the Writ Petitions by holdingthat the rejection orders passed by the Land Board denying theretention of lands were perfectly legal. The said fact wouldexemplify the position that atleast till the disposal of the WritPetitions, Late Shri.G.Govindasamy and Shri.G.Varadaraj treated theproperty as one of their own. It also exemplifies the fact that thealleged oral gift was a make-believe arrangement between them and thepetitioner in order to get over the rigours of the provisions of theAct.21.It is further to be seen that a perusal of the letterdated 14.01.1960 said to have been given by the LateShri.G.Govindasamy in favour of the petitioner would clearly showthat what was given was a mere permission to utilise the land and not https://hcservices.ecourts.gov.in/hcservices/ as a gift. Therefore, this Court is of the considered view thatmerely because arrangements have been made between the parties to getover the provisions of the Act, the same would not bind therespondents. It is pertinent to note that while filing the earlierWrit Petitions in the year 1968, no plea was taken by the deceasedpersons that the lands have been given as a gift in favour of thepetitioner. Hence it is very clear that the arrangement is a makebelieve one.22.Whether an oral or an unregistered gift is permissible in law:22.1.Section 17 of the Registration Act, 1908 prescribesthe transactions for which a registration is compulsory. Accordingly,an instrument of immovable property has to be registered. Section 49of the Act speaks about the effect of non-registration of documentsrequired to be registered. It clearly spells out that a gift deedwhich is required to be registered under Section 17 of the Act if notdone so would not the affect the immovable property concerned. Inother words, in the absence of any registration which is mandatorilyrequired there is no transfer of title and the alleged transactionwould be a nullity and void in the eye of law. Hence for a transferof an immovable property by way of a gift a registered deed isnecessary.22.2.'Gift' has been defined under the Transfer of PropertyAct, 1882. Section 123 of the said Act prescribes that a transfer ofgift must be effected by a registered instrument signed by the donorand attested by atleast two witnesses. In the present case on hand,there was neither a written document nor it was registered withattestation. Therefore, in such an eventuality the very plea of thepetitioner would fall on the ground in as much as there is notransfer in the eye of law. In GOMTIBAI (DEAD) THROUGH LRs. ANDOTHERS v. MATTULAL (DEAD) THROUGH LRS. [AIR 1997 SC 127], theHonourable Apex Court has observed as follows:"4.Thus, it is seen that the gift ofimmovable property should be made only fortransferring the right, title and interest by thedonor to the donee by a registered instrumentsigned by or on behalf of the donor and must beattested by at least two witnesses. The pre-existing right, title and interest of donorthereby stand divested in the donee by operationof Section 17 of the Registration Act only whenthe gift deed is duly registered and thereafterthe donor would lose title to the property. Itmust also be proved that the donee had acceptedthe property gifted over under the instrument. Inthis case, though the transfer of gift was actedupon by Kusturibai as per the correspondence andevidence on record, but, admittedly, there is nowritten instrument executed by the donor, namely, https://hcservices.ecourts.gov.in/hcservices/ the plaintiff and the defendant in favour oftheir cousin sister Kusturibai and it was gotattested by at least two witnesses and registeredin accordance with the provisions of the StampAct and the Registration Act. In the absence ofcompliance of these formalities, at best whatcould be seen from the partition deed is that theoriginal plaintiff and the defendant haveexpressed their intention to gift over the landto their cousin sister Kusturibai. As heldearlier, in the absence of any registeredinstrument of gift and acceptance thereof by thedonee, the said property could not be said tohave been legally transferred in favour of theircousin sister; in other words, the gift is notcomplete in the eye of law. Therefore, theDistrict Court has rightly set aside the decreeof the trial court which was later confirmed bythe High Court. We do not find any error of lawwarranting interference."22.3.Hence on a consideration of the provisions containedin the Transfer of Property Act, 1882 read with the Registration Act,1908 and applying the ratio laid down by the Honourable Apex Courtthe alleged transactions even assuming are true are void, ab initio,without the sanction of law.23.Constructions of the provisions of the Tamil Nadu Land Reforms(Fixation of Ceiling on Land) Act, 196123.1.A perusal of Section 2 of the Act would throw light onthe fact that the provisions of the Act would not apply to the landsheld by an existing public Trust. Section 2(1) clearly specifies thefact that the provisions would not apply only in a case where thelands are already held by an existing Trust at the time of cominginto force of the Act. In other words, when an immovable property ispurchased by a Trust after coming into force of the Act, then theprovisions of the Act would apply. Therefore, the exemption was onlyfor the properties held by the Trust and not acquired by the Trustafter coming into force and the provisions. The contention of thelearned counsel for the petitioner that in as much as Section 2 cameinto force only with effect from 01.03.1972 and hence it cannot beapplied to the petitioner's case cannot be accepted for the reasonthat the transaction being void without the mandate of law thesubsequent registration made on 15.07.1978 would amount to a newacquisition. Sub-Section 19 of Section 3 reads as follows:"3(19)."to hold land", with its grammaticalvariations and cognate expressions, means to ownland as owner or to possess or enjoy land aspossessory mortgage or as tenant or as https://hcservices.ecourts.gov.in/hcservices/ intermediary or in one or more of thosecapacities."23.2.A reading of the above said Section would throw lighton the fact that to hold land one has to be a owner, mortgage, tenantor intermediary or in one or more of those capacities. Consideringthe scope of the enactment a wider import cannot be given to give thebenefit to any other person more so when the owner himself claims thetitle to the property in his holding and the title of the petitioneris denied. The contention of the learned counsel for the petitionerthat in as much as the petitioner got a semblance of a title it hasto be held that it comes under the definition of Section 3(19) cannotbe accepted. The definition of the word hold or held has beenconsidered by the Honourable Supreme Court in A.G.VARADARAJULU v.STATE OF TAMIL NADU [(1998) 4 SCC 231] wherein it has been held asunder:"26.The word “hold” or “held” in the contextof land has come up for consideration in severalcases before this Court. In State of U.P. v.Sarjoo Devi6 while dealing with the said word inSection 3(14) of the U.P. Zamindari Abolition andLand Reforms Act, 1950, as follows: (SCC p.8,paras 8 and 10) “The word ‘held’ occurring in the abovedefinition which is a past participle of the word‘hold’ is of wide import. In the UnabridgedEdition of The Random House Dictionary of theEnglish Language, the word ‘hold’ has been interalia stated to mean ‘to have the ownership or useof; keep as one’s own’.***In Webster’s New Twentieth CenturyDictionary (Second Edition), it is stated that inlegal parlance the word ‘held’ means to possessby ‘legal title’. Relying upon this connotation,this Court in Bhudan Singh v. Nabi Bux7interpreted the word ‘held’ in Section 9 of U.P.Zamindari Abolition and Land Reforms Act, 1950 asmeaning possession by legal title.”(emphasissupplied)Again in State of A.P. v. Mohd. Ashrafuddin8it was held as follows: (SCC p. 4, para 8)“According to Oxford Dictionary ‘held’means: to possess; to be the owner or holder ortenant of; keep possession of; occupy. Thus,‘held’ connotes both ownership as well as https://hcservices.ecourts.gov.in/hcservices/ possession. And in the context of the definitionit is not possible to interpret the term ‘held’only in the sense of possession.”The word “holds” was again interpreted inHari Ram v. Babu Gokul Prasad9 where it occurs inSection 185(1) of the Madhya Pradesh Land RevenueCode, 1959. It was observed: (SCC p. 611, para5)“The word ‘holds’ is not a word of art. It hasnot been defined in the Act. It has to beunderstood in its ordinary normal meaning.According to Oxford English Dictionary, it means,to possess, to be owner or holder or tenant of.The meaning indicates that possession must bebacked with some right or title.”23.3.Therefore, the ratio laid down by the HonourableSupreme Court would makes it clear that a mere possession alone wouldnot be sufficient and what is required is that the possession must bebacked with some right or title. The words 'owner, mortgage, tenantand intermediary' will have to be read on the principle of ejusdemgeneris and there is no scope for giving any other interpretation toinclude all other persons who are in possession and in whatsoevermanner. Hence, even assuming the petitioner is in possession, thepetitioner would not fall within the definition of Section 3(19) ofthe Act. Therefore, this Court is of the view that the judgmentrelied upon by the learned counsel for the petitioner only supportsthe case of the respondents. Further Section 3(21) defines the word'intermediary' which only mean that a person who acts in between as abroker, agent or negotiator, between the two parties, which is notthe position of the petitioner in the present case.23.4.Section 7 of the Act deals with ceiling on holdingland, which is extracted hereunder:"7.Ceiling on holding land.-On and from thedate of the commencement of this Act, no personshall, except as otherwise provided in this Act,but subject to the provisions of Chapter VIII, beentitled to hold land in excess of the ceilingarea:Provided that while calculating the totalextent of land held by any person, any extent inexcess of the ceiling area and not exceeding halfan acre in the case of wet land and one acre inthe case of dry land shall, irrespective of theassessment of such land, be excluded."23.5.The said Section is both restrictive and prohibitivein nature. While it restricts the right of a person concerned, it https://hcservices.ecourts.gov.in/hcservices/ declares that no person shall subject to the exception, be entitledto hold land in excess of the ceiling area. Therefore, the object ofthe enactment is very clear that no person shall be allowed to havemore lands than permissible under the Act. The Act has been enactedwith the social objective of distributing the lands to the landlesspersons. It also provides fetters on the right to hold lands pavingway for equitable distribution among the citizens.23.6.Section 15 of the Act speaks about the power torectify the bonafide mistakes. In a case where the Authorised Officeris satisfied that a bonafide mistake has been made, the Officer canmake necessary corrections. The definition of word 'bonafide mistake'will have to be given a wider import to go into the merits of thecase, when a mistake has been committed by the Authorised Officerbelieving the statement of the land holder to be true. 23.7.It is further to be seen that Section 50(9) of the Actalso deals with a bonafide mistake. The Honourable Supreme Court inLAND COMMISSIONER v. MANJIYA PILLAI [1994 SUPP(2) SCC 464] whiledisagreeing with the judgment of this Court on the scope of Section50(9) has held as follows:"3.We have heard learned counsel for theparties, mainly on the question whetherexpression “bona fide mistake” in Section 50(9)should be construed as confined to clerical orarithmetical mistakes only. Having regard to theprovisions contained in Section 50(10) whichexpressly makes provision for correction ofclerical or arithmetical mistakes, we are unableto construe the expression “bona fide mistake” insub-section (9) of Section 50 to mean that it isconfined to clerical or arithmetical mistake.Such a construction would render the provisionsof Section 50(9) otiose. In our opinion, it wouldbe permissible for the competent authority toexercise the power conferred under Section 50(9)in cases where a bona fide mistake has beencommitted while passing orders on merits. We are,therefore, unable to agree with the view of thelearned Single Judge as well as of the DivisionBench of the High Court in this regard and thesaid view is, therefore, set aside. But havingregard to the facts and circumstances of thepresent case, we are not inclined to interferewith the ultimate order that has been passed bythe High Court. Hence, the appeal is dismissed."23.8.Hence, considering the ratio laid down by theHonourable Supreme Court, this Court is of the view that the wordsmentioned under Section 50(9) of the Act relating to bonafide mistake https://hcservices.ecourts.gov.in/hcservices/ would entitle the Authorised Officer to go into the merits of thecase, more so, when the transaction itself is void ab initio. 23.9.Section 20-A deals with penalty for future acquisitionin contravention of the provisions of the Act. The said Section canbe divided into two parts for the purpose of a proper interpretation.It provides for a penalty in a case where an acquisition has beenmade in contravention of the provisions of the Act. It also providesthat such an acquisition would be null and void. Therefore, Section20-A mandate that it is incumbent on the Authorised Officer to cometo the conclusion that a particular acquisition is null and void andon such a conclusion the penalty would thereafter arise in view ofthe deeming clause provided therein. In view of the saidinterpretation and applying the said interpretation to the facts ofthe case this Court is of the view that the order impugned isperfectly valid.23.10.It is a well settled principle of law that in orderto interpret a provision of welfare legislation which is meant forequitable distribution of land for common good to sub-serve thedirective principles enshrined in the Constitution of India, theobject of such legislation will have to be seen. In effect aninterpretation which would defeat the purpose of the Act will have tobe eschewed.23.11.A provision cannot be read in isolation. Aconstruction that would lead to absurdity and give raise to practicalinconvenience by making a provision nugatory and otiose should beeschewed. While construing a provision contained in a statute, thestatute must be read as a whole and understood in the context uponwhich it has been made.23.12.The Division Bench of this Court in YAHOO! INC(FORMERLY 'OVERTURE SERVICE INC.') v. INTELLECTUAL PROPERTY APPELLATEBOARD [2010 (5) CTC 625] has held as follows:"12.In a recent judgment in ZAMEER AHMEDLATIFUR REHMAN SHEIKH v. STATE OF MAHARASHTRA[(2010) 5 SCC 246], the Hon'ble Apex Court hasobserved as follows:"74. Before we proceed to analyse theprovisions of the two statutes in order toascertain whether they are repugnant or not, wemay note that it is well settled that noprovision or word in a statute is to be read inisolation. In fact, the statute has to be read asa whole and in its entirety. In RBI v. PeerlessGeneral Finance & Investment Co. Ltd. [(1987) 1SCC 424], this Court while elaborating the saidprinciple held as under: (SCC p.450, para 33) https://hcservices.ecourts.gov.in/hcservices/ "33. Interpretation must depend on the textand the context. They are the bases ofinterpretation. One may well say if the text isthe texture, context is what gives the colour.Neither can be ignored. Both are important. Thatinterpretation is best which makes the textualinterpretation match the contextual. A statute isbest interpreted when we know why it was enacted.With this knowledge, the statute must be read,first as a whole and then section by section,clause by clause, phrase by phrase and word byword. If a statute is looked at, in the contextof its enactment, with the glasses of thestatute-maker, provided by such context, itsscheme, the sections, clauses, phrases and wordsmay take colour and appear different than whenthe statute is looked at without the glassesprovided by the context. With these glasses wemust look at the Act as a whole and discover whateach section, each clause, each phrase and eachword is meant and designed to say as to fit intothe scheme of the entire Act. No part of astatute and no word of a statute can be construedin isolation. Statutes have to be construed sothat every word has a place and everything is inits place."13.In BANGALORE WATER SUPPLY v. A.RAJAPPA[AIR 1978 SC 548], the Hon'ble Apex Court hasobserved as follows:"Perhaps with the passage of time, what maybe described as the extension of a methodresembling the "armatures rule" in theconstitution of wills. Judges can more franklystep into the shoes of the legislature where anenactment leaves its own intentions in much toonebulous or uncertain a state."14.In CHANDRA MOHAN v. STATE OF UTTARPRADESH [1967 (1) SCR 77 (AIR 1966 SC 1987), theHon'ble Apex Court has observed that:"The fundamental rule of interpretation isthat in construing the provisions of theConstitution or the Act of the Parliament, theCourt "will have to find out the expressintention from the words of the Constitution orthe Act as the case may be ....." and eschew theconstruction which will lead to absurdity andgive rise to practical inconvenience or make theprovisions of the existing law nugatory." https://hcservices.ecourts.gov.in/hcservices/

15.JUSTICE FRANKIN IN GUISEPPI v. WALLING,144F (2d) 608 (pp 620), has observed as follows:"The necessary generality in the wordings ofmany statues, and ineptness of drafting in othersfrequently compels the Court, as best at theycan, to fill in the gaps, an activity which nomatter how one may label it, is in partlegislative. Thus the Courts in their way, asadministrators, in their way perform the task ofsupplementing statutes. In the case of Courts wecall it "interpretation" or "filling the gaps" inthe case of administrators we call it"delegation" or authority to supply the details."23.13.Therefore, on a consideration of the relevantprovisions, this Court is of the view that the Authorised Officer hasexercised its power under Section 20-A read with Section 15 of theAct. As observed by the Tribunal action was also taken under Section10(5) of the Act. It is also to be noted that admittedly theprovision contained under Section 19 of the Act which mandates priorintimation to the Authorised Officer was also not complied with andin such an eventuality the Act specifically provides for an actionunder Section 20-A. Further as submitted by the learned seniorcounsel Shri.K.Doraisami appearing for the respondent No.6 what issufficient is as to whether the authority has got the power to act ornot.24.Effect of the Civil Court Decree:-24.1.Admittedly, the petitioner has obtained an exparte decreeagainst the respondent No.7 and the application to set aside the sameis pending. Even assuming the decree is final the same cannot be abar for the respondents 1 and 2 to take action under the Act. It isfurther to be seen that for the reasons known to the petitioner theother respondents also were not made as parties. Hence this Court isof the view that the decree obtained by the petitioner has no bearingon the orders impugned.25.Whether sufficient opportunity was given or not:25.1.It is seen from the counter affidavit filed by therespondents 1 and 2 that the revision has been adjourned on severaloccasions. It was posted for hearing initially on 08.10.1999.Thereafter, it was adjourned to 29.10.1999, 15.11.1999, 08.12.1999,13.01.2000, 04.02.2000, 29.02.2000 respectively. When the matter wastaken up for hearing on 13.01.2000, the learned counsel appearing forthe petitioner submitted a petition requesting for adjournment. Thecase was adjourned to 04.02.2000. In view of the absence of thepetitioner it was adjourned to 29.02.2000 as a last chance. A noticeto that effect was also sent to the learned counsel appearing for the https://hcservices.ecourts.gov.in/hcservices/ petitioner. However, again on 29.02.2000 there was no representationand hence orders were passed on merits. 25.2.From the above said facts, it is clear that thepetitioner was given sufficient opportunities to putforth its case.Moreover, there is absolutely no explanation that has been given fornot present before the respondent No.1 during hearing. Hence, thisCourt is of the view that sufficient opportunities have been given tothe petitioner by the respondent No.1.26.Whether fraud would vitiate the proceedings:26.1.It is a well settled principle of law that a fraudwould vitiate the proceedings. An Act of fraud on the Court or theauthorities has to be viewed seriously. A collusion or a conspiracywith a view to deprive the rights of the others would render atransaction void ab initio. Therefore, when due to the collusion andfraudulent act of the parties an authority was made to believe whilepassing an order such an order would become a nullity as well as avoid one. When an order has been passed on a misrepresentation theparty who got the order in his favour cannot be thereafter say whenit was brought to light that such an order will have to be allowed tocontinue. The Honourable Supreme Court in a recent judgment inN.MEGHMALA v. G.NARASIMHA REDDY [(2010) 7 MLJ 693] has considered theentire issue and has held as follows:"20.It is settled proposition of lawthat where an applicant gets an order/office bymaking misrepresentation or playing fraud uponthe competent Authority, such order cannot besustained in the eyes of law. "Fraud avoids alljudicial acts ecclesiastical or temporal". (VideS.P.Chengalvaraya Naidu (dead) by L.Rs. v.Jagannath (dead) by L.Rs. and Others AIR 1994 SC853 : (1994) 1 SCC 1). In Lazarus Estate Ltd. v.Besalay 1956 All. E.R. 349), the Court observedwithout equivocation that "no judgment of aCourt, no order of a Minister can be allowed tostand if it has been obtained by fraud, for fraudunravels everything."21.In Andhra Pradesh State FinancialCorporation v. GAR Re-Rolling Mills and AnotherAIR 1994 SC 2151 : (1994) 2 SCC 647; and State ofMaharashtra and Others v. Prabhu (1994) 2 SCC 481: 1995-I-LLJ-622, this Court observed that a writCourt, while exercising its equitablejurisdiction, should not act as to preventperpetration of a legal fraud as the Courts areobliged to do justice by promotion of good faith."Equity is, also, known to prevent the law fromthe crafty evasions and sub-letties invented toevade law." https://hcservices.ecourts.gov.in/hcservices/

22.In Smt.Shrisht Dhawan v. Shaw Brothers,AIR 1992 SC 1555 : (1992 (1) SCC 534, it has beenheld as under:"Fraud and collusion vitiate even the mostsolemn proceedings in any civilised system ofjurisprudence. It is a concept descriptive ofhuman conduct."23.In United India Insurance Co. Ltd. v.Rajendra Singh and Others AIR 2000 SC 1165 :(2000) 3 SCC 581 : (2000) 2 MLJ 181, this Courtobserved that "Fraud and justice never dwelltogether" (fraus et jus nunquam cohabitant) andit is a pristine maxim which has never lost itstemper over all these centuries.24.The ratio laid down by this Court invarious cases is that dishonesty should not bepermitted to bear the fruit and benefit to thepersons who played fraud or mademisrepresentation and in such circumstances theCourt should not perpetuate the fraud. (SeeDistrict Collector & Chairman, VizianagaramSocial Welfare Residential School Society,Vizianagaram and Another v. M.Tripura SundariDevi (1990) 3 SCC 655 : 1990-II-LLJ-153; Union ofIndia and Others v. M.Bhaskaran AIR 1996 SC 686 :(1995) Suppl. 4 SCC 100 : 1996-I-LLJ-781; ViceChairman, Kendriya Vidyalaya Sangathan andAnother v. Girdharilal Yadav (2004) 6 SCC 325;State of Maharashtra v. Ravi Prakash BabulalsingParmar AIR 2007 SC 295 : (2007) 1 SCC 80 : (2007)7 MLJ 603; Himadri Chemicals Industries Ltd. v.Coal Tar Refining Company AIR 2007 SC 2798; andMohammed Ibrahim and Others v. State of Bihar andAnother (2009) 8 SCC 751).25.Fraud is an intrinsic, collateral act,and fraud of an egregious nature would vitiatethe most solemn proceedings of Courts of justice.Fraud is an act of deliberate deception with adesign to secure something, which is otherwisenot due. The expression "fraud" involves twoelements, deceit and injury to the persondeceived. It is a cheating intended to get anadvantage. (Vide Dr.Vimla v. Delhi AdministrationAIR 1963 SC 1572; Indian Bank v. Satyam Fibres(India) Pvt. Ltd. AIR 1996 SC 2592 : (1996) 5 SCC550; State of Andhra Pradesh v. T.SuryachandraRao AIR 2005 SC 3110 : (2005) 6 SCC 149;K.D.Sharma v. Steel Authority of India Ltd. andOthers (2008) 12 SCC 481; and Regional Manager,Central Bank of India v. Madhulika Guruprasad https://hcservices.ecourts.gov.in/hcservices/ Dahir and Others (2008) 13 SCC 170 : 2009-I-LLJ-215).26.An act of fraud on Court is always viewedseriously. A collusion or conspiracy with a viewto deprive the rights of the others in relationto a property would render the transaction voidab initio. Fraud and deception are synonymous.Although in a given case a deception may notamount to fraud, fraud is anathema to allequitable principles and any affair tainted withfraud cannot be perpetuated or saved by theapplication of any equitable doctrine includingres judicata. Fraud is proved when it is shownthat a false representation has been made (i)knowingly, or (ii) without belief in its truth,or (iii) recklessly, careless whether it be trueor false. Suppression of a material documentwould also amount to a fraud on the Court. (VideS.P.Chengalvaraya Naidu (dead) by L.Rs. v.Jagannath (dead) by L.Rs. and Others (supra);Gowrishankar and Another v. Joshi Amba ShankarFamily Trust and Others AIR 1996 SC 2202 : (1996)3 SCC 310 : (1996) 2 MLJ 38; Ram Chandra Singh v.Savitri Devi and Others (2003) 8 SCC 319; RoshanDeen v. Preeti Lal AIR 2002 SC 33 : (2002) 1 SCC100 : (2001) Supp MLJ 134 : 2002-I-LLJ-465; RamPreeti Yadav v. U.P.Board of High School &Intermediate Education AIR 2003 SC 4628; andAshok Leyland Ltd. v. State of Tamil Nadu andAnother AIR 2004 SC 2836).27.In Kinch v. Walcott (1929) AC 482, it hasbeen held that "...mere constructive fraud isnot, at all events after long delay, sufficientbut such a judgment will not be set aside uponmere proof that the judgment was obtained byperjury."Thus, detection/discovery of constructivefraud at a much belated stage may not besufficient to set aside the judgment procured byperjury.28.From the above, it is evident that evenin judicial proceedings, once a fraud is proved,all advantages gained by playing fraud can betaken away. In such an eventuality, the questionsof non-executing of the statutory remedies orstatutory bars like doctrine of res judicata arenot attracted. Suppression of any materialfact/document amounts to a fraud on the Court.Every Court has an inherent power to recall its https://hcservices.ecourts.gov.in/hcservices/ own order obtained by fraud as the order soobtained is non est."26.2.Therefore, considering the fact that both thepetitioner as well as the original owners have colluded and createdthe documents in order to escape from the clutches of the provisionsof the Act an order obtained in pursuant to the same would not enureto the benefit of anyone of them. Hence, this Court is of the viewthat the reliance made by the petitioner on the proceedings of thesecond respondent dated 26.11.1974 and 21.12.1974 has no legal basis.27.Effect of the orders passed by the Authorised Officer dated26.11.1974 and 21.12.1974:-27.1.An action of a competent officer of the State wouldbind the state only when it is lawful and in consonance with theenactment. When an order is obtained by a party on misrepresentation,the benefits given under the said order cannot be continued. Whensuch an order is passed a duty is cast upon the authorities tocorrect the same to prevent the continuance of the illegality. Inother words an order passed by an authority which he otherwise wouldnot have passed would be a nullity having the effect of ajurisdictional error. In a case where but for the misrepresentationan order can never be passed by an authority then such an order isvoid ab initio outside his jurisdiction. Therefore, such an orderwould amount to a jurisdictional error.27.2.Applying the above said principle of law to thepresent case on hand, it is clear that the Authorised Officer wouldnot have passed the order but for the misrepresentation made by thepetitioner as well as the original title holders. The AuthorisedOfficer was made to believe that there was a valid transfer of titlein the eye of law. When the alleged gift is in dispute and the samehas not been done in the manner know to law resulting in a void orfraudulent transaction then the action of the Authorised Officerbased upon them would also be a nullity. In other words if only theAuthorised Officer came to know that the alleged transaction was oneof a oral gift he would not have passed the orders dated 26.11.1974and 21.12.1974. Therefore, the Authorised Officer did not have thejurisdiction to delete the lands from the holdings of thepredecessors in title of the respondents and include the same to thatof the petitioner.27.3.It is further to be seen that an authority has toimplement the directions of the State. The State has to act inaccordance with law enacted by the Parliament, the law has to be inaccordance with the constitutional mandate. Therefore if the officerconcerned acts contrary to the same, then it is not only binding onthe State but also becomes both void and a nullity. Admittedly in thepresent case on hand, the orders passed by the Authorised Officer aretotally in contravention of the provisions of the Act which has been https://hcservices.ecourts.gov.in/hcservices/ enacted with the social welfare objective of equitable distributionof land among the citizens.27.4.In JAIPUR DEVELOPMENT AUTHORITY v. DAULAT MAL JAIN[(1997) 1 SCC 35] the Honourable Apex Court has observed as follows:"11. ... In a democratic society governed byrule of law, power is conferred on the holder ofthe public office or the authority concerned bythe Constitution by virtue of appointment. Theholder of the office, therefore, gets opportunityto abuse or misuse the office. The politician whoholds public office must perform public dutieswith the sense of purpose, and a sense ofdirection, under rules or sense of priorities.The purpose must be genuine in a free democraticsociety governed by the rule of law to furthersocio-economic democracy. The ExecutiveGovernment should frame its policies to maintainthe social order, stability, progress andmorality. All actions of the Government areperformed through/by individual persons incollective or joint or individual capacity.Therefore, they should morally be responsible fortheir actions.12. ... The Government acts through itsbureaucrats, who shape its social, economic andadministrative policies to further the socialstability and progress socially, economically andpolitically. Actions of the Government, should beaccounted for social morality. Therefore, theactions of the individuals would reflect on theactions of the Government. The actions areintended to further the goals set down in theConstitution, the laws or administrative policy.The action would, therefore, bear necessaryintegral connection between the ‘purpose’ and theend object of public welfare and not personalgain. The action cannot be divorced from that ofthe individual actor. The end is something aimedat and only individuals can have and shape theaims to further the social, economic andpolitical goals. The ministerial responsibilitythereat comes into consideration. ... 13.All purposes or actions for which moralresponsibility can be attached are actionsperformed by individual persons composing thedepartment. All government actions, therefore,means actions performed by individual persons tofurther the objectives set down in the https://hcservices.ecourts.gov.in/hcservices/ Constitution, the laws and the administrativepolicies to develop democratic traditions, socialand economic democracy set down in the Preamble,Part III and Part IV of the Constitution. Theintention behind the government actions andpurposes is to further the public welfare and thenational interest. Public good is synonymous withprotection of the interests of the citizens as aterritorial unit or nation as a whole. It alsoaims to further the public policies. Thelimitations of the policies are kept along withthe public interest to prevent the exploitationor misuse or abuse of the office or the executiveactions for personal gain or for illegalgratification."27.5.Following the said judgment of the Honourable ApexCourt it has been recently held in JAIPUR DEVELOPMENT AUTHORITY v.MAHESH SHARMA [(2010) 9 SCC 782] as follows:"34.We may at this stage appropriately referto the decision of this Court in Kiran Singh v.Chaman Paswan AIR 1954 SC 30. In the said casethis Court has held that judgment passed by acourt without jurisdiction is a nullity and sucha judgment could be challenged even in executionor collateral proceedings. The Court at SCR p.121at para 6 held thus: (AIR p.342, para 6)"6. ... It is a fundamental principle wellestablished that a decree passed by a courtwithout jurisdiction is a nullity, and that itsinvalidity could be set up whenever and whereverit is sought to be enforced or relied upon, evenat the stage of execution and even in collateralproceedings."35.In State of J&K v. Sanahullah Mir (1980)3 SCC 272 this Court dealing with a caseregarding resumption of land at SCR pp.286-87 atpara 9 held thus: (SCC p.276, para 9)"9. ... On going through these documents itappears to us that under the influence of somehigh-ups a case was made out for payment ofcompensation to the respondent in respect of theland acquired 60 years ago by acquiring it againwhich naturally led to the determination of themarket value of the land in or about the year1955. The State exchequer cannot be made tosuffer for such wanton and illegal actions of its https://hcservices.ecourts.gov.in/hcservices/ officers. The land had been resumed long ago. Itbelonged to the State. The whole proceeding ofland acquisition was a nullity. The awardresulting therefrom was also ultra vires and anullity. It mattered little whether theproceeding was taken as a result of the fraud ormistake or otherwise. We are accepting thefindings of the courts below that the respondenthad not practised any fraud nor was the landacquisition proceeding started as a result of anymistake of fact. It was either as a result ofgross negligence or a deliberate act on the partof the officials at the instance of some high-upsto help the respondent. It is well settled thatthere is no question of any acquisition of theState's own land as was purported to be done inthis case."36.In view of the aforesaid decisions ofthis Court, it is crystal clear that the issuanceof notifications under Sections 4 and 6 of theAct as also the award passed for acquisition ofthe land was a nullity and the subsequent actionof the Government derequisitioning land byissuance of notification under Section 48 wasjust and proper as that was an action forrectification of the mistake. The subsequent LandAcquisition Officer was justified in refusing torefer to the Reference Court in view of the factthat the land was already a government land andwas so described in the revenue record itself.The Land Acquisition Officer, who passed theaward, committed an illegality by not onlydetermining the compensation under the LandAcquisition Act but also directing for retentionof the interim compensation paid under the JagirAct and also in directing for allotment of adeveloped plot of land admeasuring 2500 sq yd. 37.Initiation of the acquisition proceedingsas also the award passed by the said LandAcquisition Officer is a nullity in the eye ofthe law and void ab initio and therefore could beheld so and set aside in a proceeding of thisnature. We, therefore, hold that the directionsfor payment of compensation under the RajasthanLand Acquisition Act to the predecessor-in-interest of Respondent 1 and subsequently toRespondent 1 are illegal and without jurisdictionas the award passed by the Land Acquisition https://hcservices.ecourts.gov.in/hcservices/ Officer was only an offer which itself was anullity. Payment made to the predecessor-in-interest of Respondent 1 and also to Respondent 1as his successor is also held unwarranted as thesaid orders were passed considering them as theowners of the land and not as a trustee ormanager. Therefore, the said orders directing forpayment of compensation and withdrawal of thecompensation by Respondent 1 are held to beillegal and without jurisdiction."27.6.Hence, applying the ratio laid down by the HonourableSupreme Court, the earlier orders passed by the Authorised Officerbased upon the misrepresentation would not confer any benefit on thepetitioner.28.Whether delay and subsequent events to be taken into consideration:28.1.It is seen from the facts brought forth by the learnedcounsel appearing for the respondents 4, 5 and 8, the orders passedby the second respondent have been given effect to. Changes have beenmade in the revenue records. Surplus lands have been acquired anddistributed by the authorities. There was a partition between theparties and thereafter lands have been subdivided. The parties areenjoying their respective shares.28.2.The Writ Petition has been filed on 02.12.2002challenging the order impugned dated 10.03.2000. There is noexplanation for the delay in approaching this Court. The above saidfacts would indicate that the petitioner is not entitled to invokethe discretionary jurisdiction by this Court more so when thesubsequent events have happened and the petitioner has allowed suchevents to complete. The Honourable Supreme Court in MOUMITA PODDAR v.INDIAN OIL CORPORATION LIMITED [(2010) 9 SCC 291] has observed asfollows:"44.The facts and circumstances of this caseare not such where this Court would be reluctantto come to the aid of a selected candidate,against whom there are no allegations ofmanipulation or any undue favour having beenshown to her. In our opinion, this is not a caseof such an exceptional nature where equitableconsiderations would be impermissible. Thepeculiar facts of this case are such that itwould be appropriate for the court to take intoconsideration the subsequent events, in order todo complete justice between the parties. In KedarNath v. Dhanraji Devi, (2004) 8 SCC 76, thisCourt delineated the circumstances in which thesubsequent events could be taken intoconsideration in the peculiar facts and https://hcservices.ecourts.gov.in/hcservices/ circumstances of a particular particular case. Itwas emphatically observed as follows: (SCC p.82,para 16)"16.In our opinion, by not taking intoaccount the subsequent event, the High Court hascommitted an error of law and also an error ofjurisdiction. In our judgment, the law is wellsettled on the point, and it is this: the basicrule is that the rights of the parties should bedetermined on the basis of the date ofinstitution of the suit or proceeding and thesuit/action should be tried at all stages on thecause of action as it existed at the commencementof the suit/action. This, however, does not meanthat events happening after institution of asuit/proceeding, cannot be considered at all. Itis the power and duty of the court to considerchanged circumstances. A court of law may takeinto account subsequent events inter alia in thefollowing circumstances:(i)the relief claimed originally has byreason of subsequent change of circumstancesbecome inappropriate; or(ii)it is necessary to take notice ofsubsequent events in order to shorten litigation;or(iii)it is necessary to do so in order to docomplete justice between the parties. (Re.Shikharchand Jain v. Digamber JainPraband Karini Sabha [(1974) 1 SCC 675] , SCCp.681, para 10.)"In view of the above, we find that thecourse adopted by the Division Bench wasappropriate, as well as being legally correct.45.It appears to us that the learned SingleJudge wrongly brushed aside the observations madeby this Court in Rashpal Malhotra v. SatyaRajpur, (1987) 4 SCC 391 wherein it is observedas follows: (SCC pp.397-98, para 7)"7.It has to be borne in mind that this isan appeal under Article 136 of the Constitution.This Court in Heavy Engg. Corpn. Ltd. v. K.Singhand Co. (1977) 2 SCC 515 expressed the opinionthat although the powers of this Court were wideunder Article 136 it could not be urged thatbecause leave had been granted the court mustalways in every case deal with the merits eventhough it was satisfied that the ends of justicedid not justify its interference in a given case.It is not as if, in an appeal with leave under https://hcservices.ecourts.gov.in/hcservices/ Article 136, this Court was bound to decide thequestion if on facts at the later hearing thecourt felt that the ends of justice did not makeit necessary to decide the point. Similarly inBaigana v. Collector of Consolidation (1978) 2SCC 461 this Court expressed the view that thisCourt was more than a court of appeal. Itexercises power only when there is supreme need.It is not the fifth court of appeal but the finalcourt of the nation. Therefore, even if legalflaws might be electronically detected, we cannotinterfere save manifest injustice or substantialquestion of public importance. ... It has to beborne in mind that this Court in exercising itspower under Article 136 of the Constitution actsnot only as a court of law but also as a court ofequity and must subserve ultimately the cause ofjustice." (emphasis supplied)These observations are fully applicable to thepresent case.46.Again in Municipal Board, Pratabgarh v.Mahendra Singh Chawla (1982) 3 SCC 331, thisCourt observed as under: (SCC pp.335-37, para 6)"6.What are the options before us.Obviously, as a logical corollary to our findingwe have to interfere with the judgment of theHigh Court, because the view taken by it is notin conformity with the law. It is at this stagethat Mr.Sanghi, learned counsel for therespondent invited us to consider thehumanitarian aspect of the matter. The submissionis that the jurisdiction of this Court underArticle 136 of the Constitution is discretionaryand, therefore, this Court is not bound to tiltat every approach found not in consonance orconformity with law but the interference may havea deleterious effect on the parties involved inthe dispute. Laws cannot be interpreted andenforced divorced from their effect on humanbeings for whom the laws are meant. Undoubtedly,rule of law must prevail but as is often said,'rule' of law must run akin to rule of life. Andlife of law is not logic but experience'. Bypointing out the error which according to uscrept into the High Court's judgment the legalposition is restored and the rule of law has beenensured its pristine glory. Having performed thatduty under Article 136, is it obligatory on thisCourt to take the matter to its logical end sothat while the law will affirm its element of https://hcservices.ecourts.gov.in/hcservices/ certainty, the equity may stand massacred. Therecomes in the element of discretion which thisCourt enjoys in exercise of its extraordinaryjurisdiction under Article 136. In approachingthe matter this way we are not charting a newcourse but follow the precedents of repute. InPunjab Beverages (P) Ltd. v. Suresh Chand (1978)2 SCC 144, this Court held that the order ofdismissal made by the appellant in that case incontravention of Section 33(2)(b) of theIndustrial Disputes Act did not render the ordervoid and inoperative, yet this Court did not setaside the order of the lower court directingpayment of wages under Section 33(2)(c) andaffirmed that part of the order. While recordingthis conclusion this Court observed that inexercise of the extraordinary jurisdiction thisCourt was not bound to set aside every orderfound not in conformity or in consonance with thelaw unless the justice of the case so requires.The Court further observed that demands of socialjustice are paramount while dealing with theindustrial disputes and therefore, even thoughthe lower court was not right in allowing theapplication of the respondent, the Court declinedto exercise its overriding jurisdiction underArticle 136 to set aside the order of the LabourCourt directing the appellant to pay certainamount to the workers. Following this trend inState of M.P. v. Ram Ratan 1980 Supp SCC 198,this Court while holding that the High Court wasin error in directing reinstatement of therespondent in service, took note of the fact thatby passage of time the respondent superannuated.The Court paid him back wages till the day ofsuperannuation in the round sum of Rs.10,000. Inother words, while formally setting aside theorder of the High Court directing reinstatement,treated the respondent in that case in serviceand paid him back wages because physicalreinstatement on account of passage of time wasnot possible. From the academic's point of viewthe later decision is the subject-matter ofadverse comment but we feel reasonably certainthat it stems from narrow constricted view of thejurisdiction of the Court under Article 136. Weadhere to our view after meticulously examiningthe learned comment. Having noted that criticism,we still adhere to the view that legalformulations cannot be enforced divorced from the https://hcservices.ecourts.gov.in/hcservices/ realities of the fact situation of the case.While administering law it is to be tempered withequity and if the equitable situation demandsafter setting right the legal formulations not totake it to the logical end, this Court would befailing in its duty if it does not noticeequitable considerations and mould the finalorder in exercise of its extraordinaryjurisdiction. Any other approach would renderthis Court a normal court of appeal which it isnot."These observations leave no manner of doubt thatthe court would be failing in its duty if it doesnot take due notice of the equitableconsiderations and mould the relief to docomplete justice between the parties.47.The aforesaid observations werereiterated in Taherakhatoon v. Salambin Mohammad,(1999) 2 SCC 635 : (SCC p.643, para 19)"19.We may in this connection also refer toMunicipal Board, Pratabgarh v. Mahendra SinghChawla (1982) 3 SCC 331, wherein it was observedthat in such cases, after declaring the correctlegal position, this Court might still say thatit would not exercise discretion to decide thecase on merits and that it would decide on thebasis of equitable considerations in the factsituation of the case and 'mound the finalorder'."(emphasis in original)48.In our opinion, the facts andcircumstances of this case are such that theapproach adopted by the Division Bench, in takingnote of the subsequent events, was appropriateand legally permissible. The clumsy handling ofthe entire selection process by Respondent 1ought not to result in disqualification ofRespondent 2 who was perhaps not properly guided.There are no allegations made that Respondent 2has either manipulated the selection or that anyundue favour has been shown to her by theSelection Committee. We also cannot ignore thefact that the candidates at Nos.2 and 3 of thepanel have not challenged the selection and grantof dealership to Respondent 2. The appellantcould also not get any relief, not being in thepanel of selected candidates. It is also to benoted that the dealership has been operating formore than five years. It is stated to be one ofthe best, if not the topmost, outlet in the https://hcservices.ecourts.gov.in/hcservices/ State. The entire infrastructure has been madeavailable with the combined efforts of Respondent1 and 2. Closure of the dealership, at thisjuncture, would result in disastrous consequencesto Respondent 2."28.3.Therefore by taking into consideration on thesubsequent events and unexplanation delay on the part of thepetitioner, the relief sought cannot be granted.29.Whether the order impugned is liable to be set aside:-29.1.It is a well settled principle of law that in a Writof Certiorari, this Court cannot issue an order correcting all theerrors even assuming there are technical violations of law when thereis no equity in favour of the petitioner. Only when there is a patenterror, a Writ of Certiorari can be ordered by the Writ Court. It isuseful to refer the Division Bench of this Court in M/S.DIGIVISIONELECTRONICS LIMITED v. INDIAN BANK, CHENNAI [(2005) 3 MLJ 394] whichis as follows:"46.Writ is a discretionary remedy, andhence this Court under Art.226 is not bound tointerfere even if there is a technical violationof law, vide: R.Nanjappan v. The DistrictCollector, Coimbatore, 2005 W.L.R. 47, ChandraSingh v. State of Rajasthan, J.T.(2003) 6 S.C.20,The Managing Director, Tamil Nadu State TransportCorporation (Madurai Division-IV) Limited,Dindigul v. P.Ellappan, (2005) 1 M.L.J. 639,Ramniklal N.Bhutta and another v. State ofMaharashtra, (1997) 1 S.C.C. 134, etc. To obtaina writ the petitioner must not only show that thelaw is in his favour, he must also show thatequity is in his favour. In these cases evenassuming that there is some technical violationof law, there is no equity in the petitioners'favour. Hence, we are not inclined to exerciseour discretion under Art.226 in these cases infavour of the petitioners who have borrowedmoney and do not wish to repay the same. We havebeen informed by Mr.V.T.Gopalan, learned seniorcounsel for some of the banks that aboutRs.1,34,000 Crores of bank loans are outstandingin India and have not been repaid. In many cases,there have been interim orders of various Courtswhich have stayed the recoveries. Many of suchinterim orders were wholly unjustified, andpassed only by adopting an over liberal approach.Unless repayment of the loan is done the bank orfinancial institution cannot grant a fresh loan,and hence new industries cannot be set up. Thus, https://hcservices.ecourts.gov.in/hcservices/ by staying such recoveries incalculable harm hasbeen done, and will continue to be done, to theeconomy, because persons who are genuinely inneed of loans for setting up new industriescannot get such loans because the borrowers havenot repaid them. This Court should certainly notcountenance such grave malpractices."29.2.Considering the above said ratio laid down by theDivision Bench, this Court is of the opinion that it is a fit casewhere the jurisdiction of this Court under Article 226 of theConstitution of India need not be exercised in favour of thepetitioner.30.Conclusion:-Hence for the reasons stated above, the writ petition isliable to be dismissed and accordingly, the same is dismissed.However, it is open to the respondents 1 and 2 to act in accordancewith law in pursuant to the impugned order to give effect to the samein the manner known to law. While dismissing the writ petition, it isalso observed that the observation and findings rendered herein willnot have a bearing in the pending suites filed by the respectiveparties. With the above observations, the Writ Petition isdismissed. No costs. Consequently, the connected miscellaneouspetition is closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarsriTo1. The Special Commissioner & Commissioner-Land Reforms / Land Commissioner Ezhilagam, Chepauk Chennai – 5.2.The Asst. Commissioner (Land Reforms) Coimbatore Division Erode.1 cc To Mr.Rajnish Pathriyil, Advocate, SR.870611 cc To Mr.P.K.Rajagopal, Advocate, SR.868761 cc To Mr.Muthumani Doraisami, Advocate, SR.866481 cc To Mr.R.Karthikeyan, Advocate, SR.866751 cc To Mr.D.Ravichander, Advocate, SR.86677W.P. NO.44989 OF 2002JRG (CO)RH (5.1.11)