1. Whether a Director Consolidation, exercising power under the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 can decide whether land vests or does not vest in a Gram Panchayat?

2. If answer to the first question is in the negative, then whether an order passed by a Director Consolidation, determining ownership of a Gram Panchayat, affirmed by the High Court and the Supreme Court operates as res-judicata in a-subsequent petition, filed u/s 11 of the Act?

3. Whether Section 13B of the Act empowers the Collector, exercising jurisdiction u/s 11 of the Act, to disregard an order passed by the Director Consolidation, that has been affirmed by the High Court and the Hon'ble Supreme Court?

In addition to the questions framed, ancillary issues relating to merger of orders passed by Director Consolidation, in orders passed by the High Court and the Hon'ble Supreme Court, the principles of primacy of judicial precedents, the question whether Consolidation authorities in the garb of making good deficiency of allotment to a landowner, can direct that such deficiency be made good from "Shamilat Deh" or "Jumla Mushtarka Malkan", the difference between "Jumla Mushtarka Malkan" and "Bachat Land", the nature and the manner of vesting of "Jumla Mushtarka Malkan" in a Gram Panchayat and proprietors and other questions of general importance arise for consideration.

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While deciding the above reference, Full Bench of the Punjab and Haryana High Court held as under: -

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"97. We are now left with answer to the fourth question, which reads as follows:--

Whether a plea that the order passed by the Director Consolidation was obtained by fraud can be raised after the order has been affirmed by the High Court and the Hon'ble Supreme Court?

98. The answer to this question lies in the nature of an act of fraud, namely, that fraud vitiates every act particularly fraud played upon a Court. A fraud is a species of conduct, so abhorrent to the rule of law that such an order cannot be pressed into service and would not operate as resjudicata, even where it has been affirmed by a superior forum. An order obtained by fraud may, therefore, be challenged and provided fraud is proved, be ignored by the forum where the order is pressed into service in opposition to the rights of parties. A reference in this regard may be made to a judgment of the Hon'ble Supreme Court in Gram Panchayat of Village Naulakha Vs. Ujagar Singh and Others, . The Hon'ble Supreme Court was considering the nature of an order obtained by fraud and collusion and held that if it is alleged that an order has been obtained by collusion or fraud, the Gram Panchayat or any person aggrieved may file a petition u/s 11 of the Act and would not be required to seek adjudication by an independent suit, before a Civil Court. A relevant extract from the judgment reads as follows:--

7. The law in England also appears to be the same, that no independent suit is necessary. In Spencer-Bower and Turner on Res Judicata, it is stated that there are exceptions to the principle of resjudicata. If the party setting up resjudicata as an estoppel has alleged all the elements of an estoppel (i.e. ingredients of resjudicata), it is still open to the latter (the opposite party) to defeat the estoppel by setting up and establishing certain affirmative answers. Of these there are four main classes-fraud, cross-estoppel, contract and public policy. The author clearly says that no active proceedings for 'rescission' of the earlier judgment are necessary. They stated as follows:

The avoidance of a judicial act on the ground of fraud or collusion is effected not only by active proceedings for rescission...but also by setting up the fraud as a defence to an action on the decision, or as an answer to any case which, whether by way of estoppel or otherwise, depends for its success on the decision being treated as incontrovertible.

Thus, the law is well settled that no independent suit as a condition precedent is necessary.

8. Collusion, say Spencer-Bower and Turner, is essentially play-acting by two or more persons for one common purpose a concerted performance of a fabula disguised as a judicium an unreal and fictitious presence of a contest by confederates those game is the same. As stated by Lord Selborne L/C in Boswell v. Coaks, 1894 (6) Rep. 167, there is no Judge; but a person divested with the ensigns of a judicial office, i misemployed in listening to a fictitious cause proposed to him, there is no party litigating...no real interest brought into question and to use the words of a very sensible civilian on this point, fabula non judicium, hoc est; in scena, non in foro, res agitur. That, in our view, is the true meaning of the word 'collusion' as applied to a judicial proceeding.

9. Further property of a public institution cannot be allowed to be jeopardised by persons, who at an earlier point of time, might have represented it and who were expected to effectively defend public interest and community property. Persons representing public bodies are expected to discharge their functions faithfully and in keeping with the trust reposed in them.

99. The question that would still have to be answered is whether an order passed by the Director Consolidation founded on fraud or collusion would merge in an order passed by the High Court and the Supreme court, if the writ petitions and the special leave petitions have been dismissed.

100. The doctrine of merger is based on principles of judicial propriety, the need to prevent perpetual uncertainty and maintain a binding judicial hierarchy. The doctrine of merger is not absolute and admits to a large number of exceptions, some of which we have already noticed. A significant exception is where the order is alleged to have been obtained by collusion and fraud. Fraud and collusion are a species of conduct so abhorrent to the administration of justice that they vitiate all acts performed or orders passed and no person much less a successful litigant may press into service the doctrine of merger or resjudicata in defence. To affirm a fraudulent order on the anvil of doctrine of merger would, in our considered opinion, be a travesty of justice. The dismissal of a writ petition or a SLP would not prohibit the filing of a petition u/s 11 of the 1961 Act, where the land is allegedly "Shamilat Deh" and before a Civil Court where the land is "Jumla Mushtarka Malkan" to prove the plea of fraud or collusion. A reference may be made to a judgment of the Hon'ble Supreme Court in S.P. Changalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by L.Rs. (supra). A relevant extract from this judgment reads as follows:--

1. 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 non est 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 ever court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.

7. ..."The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax evaders, bank loan dodgers and other unscrupulous persons from all walks of life find the court process a convenient level to retain the, illegal-gains indefinitely. We have no hesitation to say that a person whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of litigation.

101. The judgment in S.P. Changalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by L.Rs. (supra) was followed in A.V. Papayya Sastry and others v. Government of Andhra Pradesh and others. A relevant extract whereof read as follows:--

31. The above principle, however, is subject to exception of fraud. Once it is established that the order was obtained by a successful party by practising or playing fraud, it is vitiated. Such order cannot be held legal, valid or in consonance with law. It is non-existent and non est and cannot be allowed to stand. This is the fundamental principle of law and needs no further elaboration. Therefore, it has been said that a judgment, decree or order obtained by fraud has to be treated as nullity, whether by the court of first instance or by the final court. And it has to be treated as non est by every Court, superior of inferior.

102. The principle that fraud vitiates an order, judgment or decree, was reiterated by the Hon'ble Supreme Court in Union of India (UOI) and Others Vs. Ramesh Gandhi, and it was held that if a judgment obtained by fraud is a nullity and it would be strange logic to hear that an enquiry into the question whether a judgment was secured by playing fraud on the Court, is impermissible. A reference was made to fraud regarding public law jurisprudence. A relevant extract from the judgment reads as follows:--

27. If a judgment obtained by playing fraud on the Court is a nullity and is to be treated as non est by every Court superior or inferior, it. would be strange logic to hear that an enquiry into the question whether a judgment was secured by playing fraud on the Court by not disclosing the necessary facts relevant for the adjudication of the controversy before the Court is impermissible. From the above judgments, it is clear that such an examination is permissible. Such a principle is required to be applied with greater emphasis in the realm of public law jurisdiction as the mischief resulting from such fraud has larger dimension affecting the larger public interest.

103. The clear and unambiguous enunciation of law, on the question of fraud and collusion leaves no doubt that an order obtained by fraud cannot be said to have merged into an order passed by the High Court or the Supreme Court and an aggrieved party may validly raise a plea of fraud and collusion before the Collector, exercising power u/s 11 of the Act. If, however, the aggrieved party fails to prove its plea of fraud or collusion, such an order shall be deemed to have merged in orders passed by the High Court or the Hon'ble Supreme Court."

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