The expressions 'void and voidable' have been
subject-matter of consideration before Indian and English Courts times without
number. Opinions of Judges have not been uniform in this regard. The law in
this area is full of alarming conundrums hardly resolved by academic writing or
judicial dicta.[1]
Behind the simple dichotomy of void and
voidable acts (invalid and valid until declared to be invalid) lurk
terminological and conceptual problems of excruciating complexity.[2] Sir
Frederick Pollock said that the words void and viodable are imprecise and apt
to mislead. The test of ex facie illegality or bad on its face or in Lord
Radcliff's words "it bears no brand of invalidity on its forehead, is also
unworkable in the work-a-day world of law. Error of jurisdiction and error
within jurisdiction have been suggested as a means to cut the Gordian-Knot.
Many great writers have dealt with the subject but few have offered a fair
answer to the question, is a determination, a determination at all when made
without a statutory bearing and when is it void and to what extent? Decisions
are legion where the conditions for the exercise of power have been contravened
and the order treated as void. And when there is excess or error of
jurisdiction the end product is a semblance, not an actual order, although
where the error is within jurisdiction it is good, particularly when a finality
clause exists.[3]
" Void" dictionary means,
ineffectual,
nugatory, having no legal force, or binding effect unable in
law to support the purpose
for which it was intended; nugatory and ineffectual so that nothing can cure it, not valid. In Words and Phrases (American) Vol. 44
published by West Publishing Co. at page 319
it is stated thus: “A Void" is nothing,
it has no legal effect whatsoever, and no rights whatever
can be obtained under it or grow out of it. In law it is the same thing as if the void thing
never existed.[4]
The expression "void" has several facets. One
type of void acts, transactions, decrees are those which are wholly without
jurisdiction, ab initio void and for
avoiding the same no declaration is necessary, law does not take any notice of
the same and it can be disregarded in collateral proceeding or otherwise.
The other type of void act is a transaction which is good transaction against
the whole world until an aggrieved person decides to avoid the same and
succeeds in avoiding it by taking recourse to appropriate proceeding the
transaction becomes void from the very beginning. For this type of void
act a declaration has to be made for avoiding it. Voidable act is that which is
a good act unless avoided, e.g., if a suit is filed for a declaration that a
document is fraudulent and/or forged and fabricated, it is voidable as apparent
state of affairs is real state of affairs and a party who alleges otherwise is
obliged to prove it. If it is proved that the document is forged and fabricated
and a declaration to that effect is given a transaction becomes void from the
very beginning. There may be a voidable transaction which is required to be set
aside and the same is avoided from the day it is so set aside and not any day
prior to it. In cases, where legal effect of a document cannot be taken away
without setting aside the same, it cannot be treated to be void but would be
obviously voidable.[5]
The validity of the act or order may be challenged
directly or it may also be challenged collaterally as for example by way of
defence to a criminal charge or by way of defence to a demand for some payment.
The word “collaterally” means challenge made in proceedings which are not
themselves designed to impeach the validity of an act or order. In short it
means challenging the invalidity of some act or order indirectly when it is
sought to be enforced.
As a general rule, the court will allow the issue of
invalidity to be raised in any proceeding where it is relevant. Where some act
or order is invalid or void, that should be able to be raised in any
proceedings which depend on the validity of that act. An act or order which is ultra vires in the sense wholly without
jurisdiction is a nullity, utterly without existence or effect in law. It has
been said sometimes that there are no degrees of nullity. However, there are a
number of situations in which the court will not permit an order to be
challenged in collateral proceedings. Except perhaps in comparatively rare case
of flagrant invalidity, the decision or order is recognised as operative unless
set aside. There is a presumption of validity in favour of a disputed order
until set aside by the court. The truth is that the court will invalidate an
order only if the right remedy is sought by the right person in the right
proceeding and circumstances.
An order passed by a court of unlimited
jurisdiction, like the High Court or the Supreme Court in India, cannot be
ordinarily described as an order without jurisdiction. Such an order is either
legal or illegal or regular or irregular. However, the aforesaid statement of
law in India may have to be understood keeping in mind the constitutional
provisions which recognise separation of power as part of basic structure of
the Constitution of India. Therefore, though the high court in India is a court
of unlimited jurisdiction at least it has no power to legislate through
judgments and if the high court by its judgment transgresses this constitutional
limit, it is possible to argue that the order of the high court is without
jurisdiction.[6]
With the aforesaid prologue let us now examine the
issue of the requirement of challenging an order which is void or nullity.
In Nawab Khan
Abbaskhan V State of Gujarat[7]
in the context of the violation (without giving an opportunity of hearing to
the person concerned) of the fundamental right of freedom of movement by the
executive authority under the Bombay Police Act, the Supreme Court said that
the order passed in violation of the principles of natural justice was nullity
and breach of such an order by the person concerned did not entail penal
consequences. Justice Krishnna Ayer in
his inimitable style posed the following question and then answered it in subsequent
paragraphs of the decision:
“The
constitutional perspective must be clear in unlocking the mystique of 'void'
and 'voidable 'vis-a-vis orders under the Act. The Act is a constraint on a
fundamental right and so the scheme of Article 19 must be vividly before our
minds if extraordinary controls over human rights statutorily vested in
administrative tribunals are to be held in constitutional leash. Here, a
tribunal, having jurisdiction over area, person and subject-matter, has
exercised it disregarding the obligation to give a real hearing before
condemning. Does it spell death to the order and make it still-born so that it
can be ignored, defied or attacked collaterally? Or does it mean
nullifiability, not nullity, so that before disobeying it a court must declare
it invalid? Or, the third alternative, does it remain good and binding though
voidable at the instance of a party aggrieved by a direct, challenge? And if a
court voids the order does it work retroactively? In the present case, a
fundamental right of the petitioner has been encroached upon by the police
commissioner without due hearing so the Court quashed it - not killed it then
but performed the formal obsequies of the order which had died at birth. The
legal result is that the accused was never guilty of flouting an order which
never legally existed. We express no final opinion on the many wide-ranging
problems in public law of illegal orders and violations thereof by citizens
grave though some of them may be. But we do hold that an order which is void
may be directly and collaterally challenged in legal proceedings. Beyond
doubt, an order which infringes a fundamental freedom passed in violation of
the audi alteram partem rule is a
nullity. When a competent Court holds such official act or order invalid, or
sets it aside, it operates from nativity, i.e. the impugned act or order was
never valid.”
The
legal chaos on this branch of jurisprudence should be avoided by evolving
simpler concepts which work in practice in Indian conditions. Legislation,
rather than judicial law-making will meet the needs more adequately. The
only safe course, until simple and sure light is shed from a legislative
source, is to treat as void and ineffectual to bind parties from the beginning
any order made without hearing the party affected if the injury is to a
constitutionally guaranteed right. In other cases, the order in violation
of natural justice is void in the limited sense of being liable to be avoided
by court with retroactive force.[8]
For ordinary civil or criminal cases the
jurisdiction of a court may be classified into several categories. The
important categories are (i) territorial or local jurisdiction; (ii) pecuniary
jurisdiction; and (iii) jurisdiction over the subject-matter. So far as
territorial and pecuniary jurisdictions are concerned, objection to such
jurisdiction has to be taken at the earliest possible opportunity and in any
case at or before settlement of issues. The law is well settled on the point
that if such objection is not taken at the earliest, it cannot be allowed to be
taken at a subsequent stage. Jurisdiction as to subject-matter, however, is
totally distinct and stands on a different footing. Where a court has no
jurisdiction over the subject-matter of the suit by reason of any limitation
imposed by statute, charter or commission, it cannot take up the cause or
matter. An order passed by a court having no jurisdiction is a nullity.[9]
Orders “coarm non judice” :
In the case of In Re McC. (A minor), (1985) 1 AC 528, the House of Lords followed the
dictum of Lord Coke in the Marshal-sea Case quoting a passage from the said
judgment which was rendered in 1613 where it was laid down that where the whole
proceeding is coram non judice which
means void ab initio, the action will
lie without any regard to the precept or process. The Court said thus:-
"Consider
two extremes of a very wide spectrum. Jurisdiction meant one thing to Lord Coke
in 1613 when he said in the Marshal-sea Case (1613) 10 Co Rep 68b, at p. 76a:
'when
a Court has jurisdiction of the cause, and, proceeds inverso ordine or erroneously, there the party who sues, or the
officer or minister of the Court who executes the precept or process of the
Court no action lies against them. But when the Court has no jurisdiction of
the cause, there the whole proceeding is coram
non judice, and actions will lie against them without any regard of the
precept or process."
The
Court of the Marshal-sea in that case acted without jurisdiction because, its
jurisdiction being limited to members of the King's household, it entertained a
suit between two citizens neither of whom was a member of the King's household.
Arising out of those proceedings a party arrested "by process of the
Marshal-sea" could maintain an action for false imprisonment against inter alios, "the Marshal who
directed the execution of the process." This is but an early and perhaps
the most quoted example of the application of a principle illustrated by many
later cases where the question whether a Court or other tribunal of limited
Jurisdiction has acted without Jurisdiction (coram non Judice) can be determined by considering whether at the
outset of the proceedings that Court had Jurisdiction to entertain the
proceedings at all.
In Bahrein
Petroleum Co. Ltd. v. P.J. Pappu[10] the Supreme Court observed in para 32 that
neither consent nor waiver nor acquiescence can confer jurisdiction upon a
court, otherwise incompetent to try the suit. The Court further observed that:
"It
is well settled and needs no authority that where a court takes upon itself to
exercise a jurisdiction it does not possess; its decision amounts to nothing. A
decree passed by a court having no jurisdiction is non est and its invalidity can be set up whenever it is sought to
be enforced as a foundation for a right, even at the stage of execution or in
collateral proceedings. A decree passed by a court without jurisdiction is a coram non judice."
In Kiran Singh
v. Chaman Paswan[11]
much prior to Behrein Petroleum’s
case supra had made similar observations on the question of an order which is non est. The Supreme Court further said
that a defect of jurisdiction strikes at the very authority of the court to
pass any decree, and such a defect cannot be cured even by consent of parties.
[Please refer to also Hasham Abbas Sayyad v. Usman Abbas Sayyad and Ors. (2007)
2 SCC 355 , Chief Justice of A.P. v. L.V.A. Dixitulu [(1979) 2 SCC 34]; Zila
Sahakari Kendrya Bank Maryadit v. Shahjadi Begum [(2006) 11 SCC 692] as also
Shahabad Cooperative Sugar Mills Ltd. v. Special Secretary to Govt. of Haryana
[(2006) 12 SCC 404].
In the State
of Orissa Versus Brundaban Sharma[12]
the Supreme Court held that the order passed by Tehsildar
without confirmation by the Revenue
Board was non est. A non est
order is a void order and it conferred no title and its validity can be
questioned or invalidity be set up in any proceeding or at any stage. In this
case the power of revision was exercised by the Revenue Board after lapse of 27
years and the court held that the power exercised by the Board was not illegal
since the Board had no opportunity to know about the transaction which was no
transaction in eye of law without the confirmation of the Board.
In Chief Engineer, Hydel Project v. Ravinder
Nath[13]
the Supreme Court examined the question as to whether the Civil Court had
jurisdiction to decide the dispute that was within the jurisdiction of Labour
Court and that whether the issue of lack of inherent jurisdiction could be
raised before it at belated stage. The court said that once the original decree
itself has been held to be without jurisdiction and hit by the doctrine of coram non judice, there would be no
question of upholding the same merely on the ground that the objection to the
jurisdiction was not taken at the initial, First Appellate or the Second
Appellate stage. The civil court in this case had no jurisdiction to deal with
the suit and resultantly the judgments of the Trial Court, First Appellate
Court and the Second Appellate Court are liable to be set aside for that reason
alone.
In Shivshankar
Gurgar v. Dilip[14]
the Supreme Court dealt with a situation where the appellant had failed to
challenge the order of the executing court which according to the appellant was
void and without jurisdiction as the order in question had an effect of
modifying the original decree. In the facts of this case the Supreme Court held
that the
order of the executing court was beyond his jurisdiction and a nullity. The
court further said that it is well settled that such a void order can create
neither legal rights nor obligations. Therefore, the appellant could not be
denied his right to recover possession of the property in dispute on the ground
that he did not choose to challenge such a void order.
In Balvant N. Viswamitra
and Ors. v. Yadav Sadashiv Mule (Dead) Through LRs. and Ors.[15],
The Supreme Court opined that a void decree can be challenged even in execution
or a collateral proceeding holding:
"The
distinction between a decree which is void and a decree which is wrong,
incorrect, irregular or not in accordance with law cannot be overlooked or
ignored. Where a court lacks inherent jurisdiction in passing a decree or
making an order, a decree or order passed by such court would be without
jurisdiction, non est and void ab initio. A defect of jurisdiction of the court
goes to the root of the matter and strikes at the very authority of the court
to pass a decree or make an order. Such defect has always been treated as basic
and fundamental and a decree or order passed by a court or an authority having
no jurisdiction is a nullity. Validity of such decree or order can be
challenged at any stage, even in execution or collateral proceedings."
Orders theoretically ultra vires but in effect just voidable:
As discussed earlier in this article there are
certain types of void orders that require specific declaration of their
nullity. They are theoretically ultra
vires and in that sense void but in fact they are voidable only. This is so
because the doctrine of ultra vires covers
within its sweep the orders that are passed in violation of the principles of
natural justice, procedural or substantive law or passed in bad faith or for
extraneous considerations etc. In State
of Punjab and Ors. v. Gurdev Singh[16]
this Court held that a party aggrieved by the invalidity of an order has to
approach the court for relief of declaration that the order against him is
inoperative and therefore, not binding upon him. While deciding the said case,
this Court placed reliance upon the judgment in Smith v. East Ellore Rural District Council[17]
wherein Lord Radcliffe observed :-
"An
order, even if not made in good faith is still an act capable of legal
consequences. It bears no brand of invalidity on its forehead. Unless the
necessary proceedings are taken at law to establish the cause of invalidity and
to get it quashed or otherwise upset, it will remain as effective for its
ostensible purpose as the most impeccable of orders."
Apropos to this principle, Prof. Wade
states:"the principle must be equally true even where the 'brand' of
invalidity' is plainly visible; for their also the order can effectively be
resisted in law only by obtaining the decision of the Court (See:
Administrative Law 6th Ed. p. 352). Prof. Wade sums up these principles:
"The
truth of the matter is that the Court will invalidate an order only if the
right remedy is sought by the right person in the right proceedings and
circumstances. The order may be hypothetically a nullity, but the Court may
refuse to quash it because of the plaintiffs lack of standing, because he does
not deserve a discretionary remedy, because he has waived his rights, or for
some other legal reason. In any such case the 'void' order remains effective
and is, in reality, valid. It follows that an order may be void for one purpose
and valid for another, and that it may be void against one person but valid
against another."
Thus, from the above it emerges that even if the
order is void or voidable in the aforesaid sense, the party aggrieved by the
same cannot decide that the said order is not binding upon it. It has to
approach the court for seeking such declaration.
In the case of Ittyavira
Mathai v. Varkey Varkey[18]
the question which fell for consideration before the Supreme Court was if a
Court, having jurisdiction over the parties to the suit and subject matter
thereof passes a decree in a suit which was barred by time, such a decree would
come within the realm of nullity and the Court answered the question in the
negative holding that such a decree cannot be treated to be nullity but at the
highest be treated to be an illegal decree. While laying down the law, the
Court stated at page 910 thus:-
"If
the suit was barred by time and yet, the Court decreed it, the Court would be
committing an illegality and therefore the aggrieved party would be entitled to
have the decree set aside by preferring an appeal against it. But it is well
settled that a Court having jurisdiction over the subject-matter of the suit
and over the parties thereto, though bound to decide right may decide wrong,
and that even though it decided wrong it would not be doing something which it
had no jurisdiction to do. It had the jurisdiction over the subject-matter and
it had the jurisdiction over the party and, therefore, merely because it made
an error in deciding a vital issue in the suit, it cannot be said that it has
acted beyond its jurisdiction. As has often been said, Courts have jurisdiction
to decide right or to decide wrong and even though they decide wrong, the
decrees rendered by them cannot be treated as nullities. "
Again, in the case of Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman[19],
the Supreme Court was considering scope of objection under Section 47 of the
Code in relation to the executability of a decree and it was laid down that
only such a decree can be subject-matter of objection which is nullity and not
a decree which is erroneous either in law or on facts. In Krishnadevi Malchand Kamathia v. Bombay Environmental Action Group[20]
it was held:
“It
is settled legal proposition that even if an order is void, it requires to be
so declared by a competent forum and it is not permissible for any person to
ignore the same merely because in his opinion the order is void.”
In State of Kerala
v. M.K. Kunhikannan Nambiar Manjeri Manikoth Naduvil (dead) and Ors., AIR
1996 SC 906; Tayabbhai M. Bagasarwalla
and Anr. v. Hind Rubber Industries Pvt. Ltd. etc, AIR 1997 SC 1240; M. Meenakshi and Ors. v. Metadin Agarwal
(dead) by L.Rs. and Ors. (2006) 7 SCC 470 : (2006 AIR SCW 4323); and Sneh Gupta v. Devi Sarup and Ors.,
(2009) 6 SCC 194, the Supreme Court held that whether an order is valid or
void, cannot be determined by the parties. For setting aside such an order,
even if void, the party has to approach the appropriate forum. In Sultan Sadik v. Sanjay Raj Subba[21] it is held that an order may be void for one
and voidable for the other. An invalid order necessarily need not be non est; in a given situation it has to
be declared as such
“The
order or action, if ultra vires the power
becomes void and it does not confer any right.
But the action need
not necessarily be set at naught in all events. Though the order
may be void, if
the party does not approach the court within reasonable time, which is always a question
of fact and have the orders invalidated or
acquiesced or waived, the discretion of the court has to be exercised
in a reasonable manner. When discretion has been conferred on the court,
the court may in appropriate case decline to grant relief even if it holds that
the order was void.”
In
the aforesaid case the land acquisition proceedings became
final upon passing of the award, acceptance of compensation and the appeal
being disposed of, the award was not interfered with even though theoretically
there was noncompliance of some mandatory requirement of law and the
proceedings were void on that count. Similarly in Prem Singh v. Birbal[23]
a suit for cancellation of a sale-deed was not filed within 12 years in all
and/or 3 years after attaining majority. The court therefore held it to be time
barred even though the sale-deed was alleged to have been executed by minor
since the minor had the knowledge of the transaction.
In the case of Alfered
Durayappah Versus Frenando[24] the Privy Council had
an occasion to deal with a situation a where the dissolution
of the municipal council was made by Minister without giving an opportunity of
hearing to the members of the municipal council. In this background the
question arose as to whether the Minister’s order was nullity or voidable and
whether voidable only at instance of the party affected. The Privy Council held
that the minister’s order was voidable
and not a nullity. Though the council should have been given an opportunity of
being heard in its defence, if it
deliberately chose not to complain and takes no step to protest against its
dissolution, there
seems no reason why any other person
should have right to interfere. Being voidable it was voidable only at the instance of the person against
whom the order was made, that is council. The appellant was no doubt Mayor at the time of dissolution
but that does not give him any right to complain
independently of the council.
In many decisions of the Supreme
Court of India a paragraph from the decision of House of Lords in Smith v. East Elloe Rural District Council[25] is oft quoted out of context. In this case
the plaintiff instituted proceeding in the ordinary court claiming damages,
injunction and declaration that the power of compulsory purchase of her
property had been exercised wrongfully and in bad faith. It was the principle
contention in the proceeding that an order made in bad faith was in law
nullity. It was contended that the remedy under paragraph 15 provided in the
Acquisition of Land (authorized Procedure) Act, 1946 would not cover a case
where the power of compulsory purchase had been exercised in bad faith and for
challenging such an order of compulsory purchase of land the jurisdiction of
the ordinary court was not ousted under paragraph 16 of the Act. Dealing with
such contentions Lord Radcliffe said:
“An
order, even if not made in good faith, is still an act capable of legal
consequences. It bears no brand of invalidity upon its forehead. Unless the
necessary proceedings are taken at law to establish the cause of invalidity and
to get it quashed or otherwise upset, it will remain as effective for its
ostensible purpose as the most impeccable of orders.”
The
aforesaid observations cannot be referred to and relied upon in the cases where
a court or tribunal lacks jurisdiction over the subject matter of dispute or
where a transaction is statutorily declared to be void ab initio or non est.
In such cases the issue of jurisdiction or the order/transaction being nullity
can be raised at any stage, in any proceeding as a defence collaterally.
In another decision, in the case of Director of Public Prosecutions v. Head[26],
House of Lords was considering validity of an order passed by Secretary of the
State in appeal preferred against Judgment of acquittal passed in a criminal
case. The Court of Criminal Appeal quashed the conviction on the ground that the
aforesaid order of Secretary was null and void and while upholding the decision
of the Court of Criminal Appeal, the House of Lords observed at page 111 thus:
"This
contention seems to me to raise the whole question of void or voidable for if
the original order was void, it would in law be a nullity. There would be no
need for an order to quash it. It would be automatically null and void without
more ado. The continuation orders would be nullities too, because you cannot
continue a nullity... But if the original order was only voidable, then it
would not be automatically void. Something would have to be done to avoid it.
There would have to be an application to the High Court for certiorari to quash
it."
This question was examined by Court of Appeal in the
case of R. v. Paddington Valuation
Officer and another, Ex parte Peachey Property Corporation, Ltd.[27]
where the valuation list was challenged on the ground that the same was void
altogether. On these facts, Lord Denning, M.R. laid down the law observing at
page 841 thus:
''It
is necessary to distinguish between two kinds of invalidity. The one kind is
where the invalidity is so grave that the list is a nullity altogether.
In which case there is no need for an order to quash it. It is automatically null
and void without more ado. The other kind is when the invalidity does not make
the list void altogether, but only voidable. In that case it stands unless and
until it is set aside. In the present case the valuation list is not, and never
has been, a nullity. At most the first respondent-acting within his
Jurisdiction - exercised that Jurisdiction erroneously. That makes the list
voidable and not void. It remains good until it is set aside."
Thus, whenever in any proceeding a defence or
contention is raised that the order in dispute is void or nullity, the court must
examine with sufficient clarity the contention or defence in the light of the
aforesaid discussion. The court must find out whether the order is in truth
absolutely without jurisdiction or is just voidable for the reasons viz. the
order was passed in violation of principles of natural justice or in violation
of substantive or procedural law or in bad faith or for extraneous
considerations etc. If the defect is of the former type, the contention or
defence of lack of jurisdiction can be allowed at any stage and even in
collateral proceeding too. If the defect is of latter type the order requires
specific declaration of its voidness.
Conclusions:
There is no uniformity in the decisions of Indian
and English Courts on the requirement of challenging a void order or
transaction. In the writer’s opinion a statutorily void transaction or an order
whether it is judicial, quasi judicial or administrative, if passed in respect
of the subject matter over which the court or the authority has no jurisdiction
at all, the issue of its invalidity or lack of jurisdiction can be agitated at
any stage and even in collateral proceeding also. Other types of ultra vires orders are in effect usually
voidable only and hence are required to be challenged in appropriate proceeding
by appropriate person only. In such cases the factors viz. delay in seeking
remedy, waiver and acquiescence on the part of the party aggrieved etc become
relevant.
The words “void” and “voidable” are imprecise and
apt to mislead. These words have well-understood meanings
when dealing with the question of proprietary or
contractual rights. It is better, in the field where the subject matter of the
discussion is whether some order which has been made or whether some steps in
some litigation or quasi-litigation is
effective or not, to employ the verbal distinction
between whether it is truly a "nullity", that is to all intents and purposes of which any
person having legitimate interest in the matter can take advantage or whether it is
voidable only at the instance of the party affected.
In the writer’s view it is better to employ the words viz. “Void”, “Void ab intio” or ”nullity” when an
order is passed by an authority, court or tribunal which completely lacks
jurisdiction over the subject matter of dispute. In other cases it is better to
employ the words “illegal” or “unlawful” or “in breach of substantive or
procedural law” or “in violation of the principles of natural justice” and
therefore invalid or unsustainable to indicate that the order is voidable rather
than using the words “nullity”, “void” or “ultra
vires”.
An order passed in violation of the principle of audi altrem partem infringing the
constitutionally guaranteed right is nullity in law and breach or disobedience
thereof would not entail any penal consequences.[28]
xxx---xxx---xxx
[1]
Nawabkhan Abbaskhan v State of Gujarat AIR 1974 SC1471
[2] De
Smith, Woolf and Jowell in their treatise Judicial Review of Administrative
Action. Fifth Edition, paragraph 5-044.
[3]
Nawabkhan Abbaskhan v State of Gujarat AIR 1974 SC1471
[5]
In Dhurandhar Prasad Singh v. Jai Prakash
University AIR 2001 SC 2552 (para 10 to 21) the Supreme Court examined the
issue of void order and the requirement of challenging it in collateral
proceeding from various angle.
[6]
Writer’s personal view
[7] AIR
1974 SC 1471
[8] AIR
1974 SC 1471
[9]
Harshad Chimanlal Modi v.DLF Universal Ltd. (2005) 7 SCC 791
[10]
(1966) 1 SCR 461 : AIR1966 SC 634
[12]
(1995) Suupl 3 SCC 249
[14] AIR
2014 SC 1182 (para 16)
[15]
(2004) 8 SCC 706
[16] AIR
1992 SC 111
[17] [1956] 1 All ER 855:1956 AC 736
[18] AIR
1964 SC 907
[19] AIR
1970 SC 1475
[20] AIR
2011 SC 1140
[21] AIR
2004 SC 1377 (para 38 to 40)
[23] AIR
2006 SC 3608
[24]
[1967]2 AC 337
[25] 1956
AC 736
[26] 1959
AC 83
[27]
(1965) 2 All ER 836
[28] AIR
1974 SC 1471 In the view of the writer this proposition of law flowing from
Nawabkhan’s case is fraught with many complications and it has to be applied in
a very clear case of an infringement of any constitutionally guaranteed right.
In principle the proposition of law emerging from Nawabkhan’s case sounds very attractive
but in practice it might be difficult to apply it.
