�A nullity need not be challenged but can be used as a Defense if set against � -- Cyber Legal Aid

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Date Posted: 10:06:53 03/13/06 Mon
Author: Ojasvita Srivastava
Subject: �A nullity need not be challenged but can be used as a Defense if set against �

�A nullity need not be challenged but can be used as a Defense if set against �

A nullity need not be challenged but can be used as a defense if it is enforced or set up against some one.

In the case of State of Maharashtra & others v. Glaxo Laboratories(India) Pvt. Ltd & ors, reported in 1979 Bom CR 321,the High Court of Bombay held in paragraph 20 that:

� Prayer (a) of plaint, plaintiffs asked for the declaration that the said orders of the collector dated March 3, 1962;April 10, 1962 & Sept 20,1962 & order of the Director of Prohibition & Excise dated Feb ,1965 and the recovery of the said sum of Rs 1,64,415.34p were illegal, invalid & ultra vires. Unable to accept this submission. The reading of the whole plaint shows that the plaintiff�s suit was really in substance a suit to recover the amount of duty illegally recovered from them by the Authorities. The cause of action for this suit accrued to the plaintiffs when under the threats of setting into action against them the coercive provisions of the Act the plaintiffs paid the sum of duty on September 6,1965.Had the plaintiffs suit had been only to set aside the aforesaid orders and not for the recovery of the sum paid by them, it may well be argued that the plaintiffs suit was premature because they had filed a revision application to the Central Government which was still pending. According to the plaintiffs, the aforesaid demands were void as being wholly outside the Act.

Further, in the case of Abdulrehman reported in (1942 ) 44 Bom L R 577, a full bench held that �where a revenue officer purported to do an act or pass an order which was invalid, his action did not operate to raise a bar under that section. It further held that where an authority which purported to pass an order was mere nullity, & it was not necessary for anybody who obliged to that order to apply to set it aside, & he could
rely upon the invalidity of the order when it was set up against him, although he had not taken steps to set it aside, & that such an order did not give rise to any right whatever not even to a right of appeal.�

In case no890 of 1978, ( Nagin Mansukhlal Dagli v. Haribhai Patel), a 2 judge bench decided on Feb 718, 1979 (unrep) that
� a suit for a declaratory decree can only be a suit of the type specified in the said section 34 of the Specific Relief Act, & merely because a plaintiff chooses in the plaint to ask for declarations which are really answers in his favor to issues which arise in the suit,does not make that suit a declaratory suit or a suit for declaratory decree�

Therefore, a nullity need not and cannot be asked to be set aside.
It can neither be enforced in the light of the above judgements.

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