Prasad Agarwal & Anr Vs. B.D. Agarwal & Ors  Insc 283 (7 July 2003)
S.B. Sinha & Ar. Lakshmanan.
with C.A. No. 4783 of 1996 and W.P. (C) No. 527 of 1993 S.B.
SINHA, J :
settlement of a private dispute between the parties to a writ proceeding is
permissible in law, is the prime question involved in these batch of appeals
which arise out of judgments and orders passed by Madhya Pradesh High Court in
M.P. No. 802 of 1992 and M.C.C. No. 477 of 1992 and the connected writ petition.
factual matrix involved in these matters may be noticed in brief.
partnership firm known as M/s. Dwarka Prasad Agarwal & Brothers (The firm)
was constituted with Dwarka Prasad Agarwal (since deceased), Bishambhar Dayal Agarwal
(since deceased), Mahesh Prasad Aggarwal - all sons of Keshav Dev Agarwal and Ramesh
Chandra Agarwal, son of Dwarka Prasad Agarwal in the year 1972 as partners
thereof. Each partner contributed towards the capital of the Firm in shares to
the extent of 25%, 30%, 30% and 15% respectively. Prior to the constitution of
the Firm, a newspaper known as 'Dainik Bhaskar' was being published by Dwarka
Prasad Agarwal and his name was recorded in the Registrar of Newspapers for India (for short 'RNI'). The said Dwarka
Prasad Agarwal was the karta of a larger HUF consisting of himself and his
partners. He had two wives, namely, Kasturidevi and Kishoridevi. Allegedly, the
firm transferred the business of publication of Dainik Bhaskar at Gwalior to a newly incorporated company,
M/s. Bhaskar Publication and Allied Industries Pvt. Ltd. of which Dwarka Prasad
Agarwal was the lifetime Managing Director and Chairman and therein Bishambhar Dayal
Agarwal and his son, Ramesh Chandra Agarwal were shareholders and directors. A
printing press of which Dwarka Prasad Agarwal was the owner is said to have
been transferred to the said company for the purpose of printing of the
aforementioned newspaper. According to the appellants, in the Annual Reports of
the RNI, the name of the said firm was shown as the owner of the said
newspaper. It is not disputed that in the year 1982, Dwarka Prasad Agarwal
suffered from a paralytic attack and was unable to attend to business actively.
alleged that Ramesh Chandra Agarwal filed a Declaration on or about 13.10.84 along
with an authority letter dated 10.1.83 from Dwarka Prasad Agarwal in respect of
publication of Dainik Bhaskar at Indore for admitting him to be the owner of
the newspaper and the company as a lessee. Certain documents were allegedly
created on 13th March, 1985 by Ramesh Chandra Agarwal for the said purpose; one
of them, being an Agreement of Sale alleged to have been entered by and between
the Firm and a company called M/s. Writers & Publishers Pvt. Ltd., the
genuineness or otherwise of which was the subject matter of a suit being suit
No. 57A of 1988. Another document also came to be executed on the same day, the
genuineness whereof was also disputed, is an alleged deed of partition/ family
settlement of the HUF; in terms whereof the firm's assets, several other
properties, fixed deposits, money and business including those situated at
Bombay, Delhi, Raipur, Indore, were divided between Dwarka Prasad Agarwal, Bishambhar
Dayal Agarwal, Mahesh Prasad Agarwal and Ramesh Chandra Agarwal. According to
the appellant, Dwarka Prasad Agarwal never signed the said deed of partition/
family settlement nor was it acted upon and in fact was questioned as forged
and non-existent by Bishambhar Dayal Agarwal in a proceeding before District
Magistrate, Jabalpur and the same was also the subject matter of suit No. 57A
of 1988 pending in the court of District Judge, Bhopal. Several other suits
were filed by the parties at several places viz. Jabalpur, Bhopal, Raipur, Gwalior,
etc. Several proceedings were also initiated before different forums with
regard to publication of the said newspapers at different places. Some writ
petitions were also filed by the parties before the High Court. Some
proceedings by way of Special Leave Application were also filed before this
not be necessary to delve deep into the effect and purport of the said disputes
for answering the issue involved in these matters, except a few.
may, however, be noticed that Bishambhar Dayal Agarwal, questioning the
authentication made by the Additional District Magistrate, Jabalpur of the
Declaration filed by Sudhir Agarwal, son of Ramesh Chandra Agarwal for
newspaper 'Nav Bhaskar' as regard its publication from Jabalpur as also a
purported order passed thereupon by the said authority on 3.12.91 filed a writ
petition before the Madhya Pradesh High Court. Dwarka Prasad Agarwal was made a
proforma respondent herein.
said writ petition was marked as MP No. 802 of 1992 wherein the following reliefs
That the Hon'ble Court be pleased to declare by an appropriate writ, order or
direction that the power conferred on the District Magistrate/ Additional
District Magistrate under Section 4 and 6 of the Press and Registration of
Books Act, 1867, in case of declarations submitted for same or similar titles
as ultra vires to the petitioner's right under Article 14, 19(1)(a) and (g) of
the Constitution of India.
That the Hon'ble Court be further pleased to declare by an appropriate writ
that if a power is conferred on District Magistrate/ Additional District
Magistrate to grant declaration of title of same or similar nature, such a
power cannot be exercised by the District Magistrate/ Additional District
Magistrate till an Appellate Authority is constituted to be able to oversee and
review the exercise of powers by the District Magistrate/ Additional District
non-provision of Appellate power violates the petitioner's fundamental rights
under Article 14 and 19(1)(a) and (g) of the Constitution of India.
That the Hon'ble Court be further pleased to quash and set aside the
declaration dated 11.10.1991 approved by the Additional District Magistrate, Jabalpur,
of the title Nav Bhaskar submitted by publisher Sudhir Agarwal as void, illegal
and contrary to law.
The Hon'ble High Court may be pleased to quash and set aside the declaration
dated 14.2.1992 Annexure P.27 authenticated by the Additional District
Magistrate, Jabalpur in favour of the respondent No. 1 Sudhir Agarwal for
printing and publishing newspaper under the name and style of Nav Bhaskar as
void, illegal and non-set in law.
That the Hon'ble Court be further pleased to set aside and quash the order
dated 3.12.1991 passed by the Additional District Magistrate, Jabalpur, on an
application/ objection made by the petitioner under Section 8-B of the Press
and Registration of Books Act, 1867 as void, illegal and contrary to law.
That the Hon'ble Court may be further pleased to prohibit and restrain the
respondent Sudhir Agarwal and his father Shri Ramesh Chandra Agarwal from using
the title Nav Bhaskar and to restrain the A.D.M. Jabalpur from granting any
such or similar title to Shri Sudhir Agarwal or Shri Ramesh Chandra Agarwal.
Any other appropriate writ, order or direction which the Hon'ble Court deems just and proper may also be
passed in the facts and circumstances of the case as also in the interest of
Cost of proceedings of this petition may also be awarded in favour of the
pendency of the said writ proceedings, on 29.6.92 the petitioner therein, Ramesh
Chandra Agarwal son of Dwarka Prasad Agarwal and Mahesh Prasad Agarwal along
with their sons Kailash, Sudhir and Sanjay purported to have entered into a
deed of settlement. Dwarka Prasad Agarwal admittedly was a proforma respondent
therein and although his rights as partner were directly affected thereby he
was neither a party to the said settlement nor a signatory to the said deed.
The said purported agreement was filed on the same day before the Madhya
Pradesh High Court by the petitioner therein alleging that he and the
contesting respondents had reached a full and final settlement of 'the disputes
raised in the petition and other connected matters' pending before various
courts and bodies and the writ petition be disposed of in terms of the said
purported comprehensive agreement. The said settlement was accepted and the
writ petition was disposed of in terms thereof on 29.6.1992 which was also the
date of filing of the compromise memo. The said order dated 29.6.92 is the
subject matter of Civil Appeal No. 4782 of 1996.
to or in furtherance of the said purported compromise, RNI altered the name of
owner of title Dainik Bhaskar in his Register from the Firm to M/s. Writers on
or about 3.9.1992 stating:
is to state that in accordance with the notice issued on the above subject in
the matter of ownership of Dainik Bhaskar, as per the decision in Case No.
1182/92 dated 29.6.92 of the High Court of Madhya Pradesh, at Jabalpur and
agreement dated 19.6.92 M/s. Writer & Publishers Pvt. Ltd., Bhopal, has
become the owner of Dainik Bhaskar.
are, therefore, requested that if you have any objection to this decision then
you may approach the High Court at Jabalpur." Dwarka Prasad Agarwal having come to learn the said order of RNI
dated 3.9.1992 filed an application for review of the order dated 29.6.1992
passed by the High Court which was marked as MCC No. 477 of 1992. The said
review petition was dismissed by an order dated 13.11.1992 and the same is the
subject matter of Civil Appeal No. 4783 of 1996.
High Court in its order dated 13.11.92 refusing to review its earlier order
dated 3.9.92 inter alia held:
The agreement in question is a lawful one.
As Dwarka Prasad Agarwal was not a signatory thereto, he was not bound thereby.
The order recording compromise was legal as no other party including the
learned advocate of Dwarka Prasad Agarwal objected thereto.
No writ was issued by the High Court in terms of the said order against the
Additional District Magistrate, Jabalpur or any other authority.
to or in furtherance of the said order dated 29.6.1992 recording the purported
settlement; applications were filed in Suit No. 74A of 1987 and 75A of 1987 in
Bhopal by M/s. Writers and Ramesh Chandra Agarwal for withdrawal thereof,
whereupon the suits were dismissed.
Dayal Agarwal also, who had filed suit No. 57A of 1988, moved an application to
the effect that pursuant to the compromise the suit be dismissed. This plea was
Prasad Agarwal filed Writ Petition No. 527 of 1993 in this Court questioning
the aforementioned order dated 3.9.92 passed by RNI wherein inter alia the
following reliefs were prayed for:
writ, order or direction quashing the order dated 3rd September, 1992 whereby the Registrar, Newspapers has changed the
name of the owner of the title Dainik Bhaskar from M/s. D.P. Agarwal and
Brothers to M/s. Writers and Publishers Private Limited;
writ, order or direction directing Respondent No. 1 and 2 not to allow
Respondent No. 7 to use the title Dainik Bhaskar for its publication;
writ, order or direction directing the Respondents not to publish newspaper Dainik
Bhaskar under the alleged title of Respondent No. 7;
writ, order or direction directing the Respondent No. 2 to exercise its
authority not to allow Respondents No. 3 to 7 to publish newspaper Dainik Bhaskar
under the title of writers and publishers Private Limited;
issue writ, order or direction directing the Respondent No. 8 not to allow the
Respondents No. 3 to 7 to publish newspaper Dainik Bhaskar in contravention of
the provisions of the Press and Registration of Books Act, 1867; and
such other and further orders as may be deemed fit and proper in the facts and
circumstances of the case." Dwarka Prasad Agarwal died during the pendency
of these proceedings.
the wives of the said Dwarka Prasad Agarwal applied for substitution of their
names in place of the deceased. The rival contentions on substitution by the
two wives of Late Dwarka Prasad Agarwal came to be considered by this Court. Kishori
Devi pressed her application. Kasturi Devi, however, was not sure that, she,
having regard to her stand taken in the litigation, would be able to defend the
action on behalf of her husband.
consideration of the said question, this Court directed Kasturi Devi to be impleaded
as a respondent in the proceeding whereas Kishori Devi and her daughters Hemlata
and Anuradha were directed to be substituted in place of Late Dwarka Prasad Agarwal.
While passing the said order, however, an observation was made that the said
question shall be finally decided at the time of hearing. We may, however
notice that in the said proceedings for substitution, Ramesh Chandra Agarwal
filed a counter affidavit calling Smt. Kishori Devi a concubine of Dwarka
Prasad Agarwal. Keeping in view the stand taken by the parties before us we
have no hesitation in holding that this Court rightly substituted Kishori Devi
and her daughters Hemlata and Anuradha in place of Late Dwarka Prasad Agarwal.
Sunil Gupta, the learned senior counsel appearing on behalf of the appellants,
as also the writ petitioner would submit that the impugned orders passed by the
High Court are ex facie bad, illegal as by reason thereof the right title
interest of Late Dwarka Prasad Agarwal, as specified hereunder, were directly
and adversely affected although he was not a party or signatory to the said
reason of the said purported compromise, the firm was sought to be dissolved of
which Dwarka Prasad Agarwal was a partner.
The firm's assets were to be sold as per the alleged agreement dated 13.3.85
and divided as per alleged partition deed of 13.4.85 which had not been signed
and accepted by Dwarka Parsad Agarwal, karta of HUF and the genuineness whereof
was also the subject matter of dispute.
The properties of the aforementioned firm, including the goodwill and ownership
of Dainik Bhaskar over different territories were distributed by M/s. Writers
Ltd. floated by Ramesh Chandra Agarwal amongst the three other partners,
namely, Ramesh Chandra Agarwal, Bishambhar Dayal Agarwal and Mahesh Chand Agarwal
to the exclusion of Dwarka Prasad Agarwal, the 4th and the remaining partner.
Although several suits, namely Suit No. 74A of 1987, 75A of 1987, 57A of 1988,
22A of 1988, 99A of 1991 and Writ Petition, MP No. 802 of 1992 were filed by
the parties, the disputes involved therein were sought to be resolved thereby
which was impermissible in law.
learned counsel would contend that the High Court committed a serious error
insofar as it failed to notice that Dwarka Prasad Agarwal could not have any
knowledge of the said unjust agreement, whence the same was accepted. Although
he had not instructed any lawyer to appear on his behalf and merely one blank Vakalatnama
executed by him bona fide was used therefor and, thus, there was no question of
his taking part in the proceeding for acceptance of the purported settlement.
In any event as his lawyer admittedly recorded merely 'no instructions' in the
said proceeding, the same could not have been treated as a consent/ no
objection to the recording of the compromise on his behalf and in that view of
the matter the observations made by the High Court that the agreement was not
opposed on behalf of the parties must held to be per se unreasonable and
attention, in this regard, has been drawn to various disputed factual aspects
of the matter for the purpose of showing that several mis- representation of
fact had been made in the aforementioned agreement of settlement and the
application dated 29.6.92 filed for recording the compromise before the High
learned counsel would further contend that the compromise was, in any event,
not lawful as thereby right of ownership of an existing title in newspaper was
sought to be determined in violation of Section 19B, the proviso appended to
Section 6 and Section 8B (ii) of the Press and Registration of Books Act, 1867
as in terms thereof the authorities were under a statutory obligation to
preserve and protect the right of the firm as regard ownership of title Dainik Bhaskar
and to prevent any person from using the same without the authorization of the
goodwill of a firm, the learned counsel would urge, would also be a subject
matter of division of assets of partnership firm irrespective of the fact as to
whether the firm had thence been carrying on business or not.
as by reason of the said compromise, transfers were sought to be made without
registering the same in terms of Indian Registration Act, the same was illegal.
It was further submitted that impact of the impugned order can be noticed from
the fact that by reason of the said purported consent order dated 29.6.92, even
the RNI also found himself compelled to forgo his statutory obligation and
found itself to be bound to alter the name of the owner of the title in the
register maintained by the said authority in terms of Section 19B of the Act
from M/s D.P. Agarwal & Bros. to M/s Writers & Publishers Pvt. Ltd.
Recording of the said compromise, it was urged, must be held to amount to practising
of fraud on the court by the parties to the agreement, as thereby they had
achieved their purpose indirectly which law prohibits them achieving directly
and furthermore, as a large number of proceedings in relation to the disputes
amongst the parties were pending before different forums, they could not have
been given a go bye by reason thereof.
learned counsel would contend that public law remedy by way of a writ petition
could not have been taken recourse to for resolution of a private dispute. It
was submitted that in that view of the matter, the observations of the High Court
that its order did not amount to issuance of a writ by the Court against any of
the parties must be held to be illegal and without jurisdiction.
our attention to the applications for withdrawal of the suits in terms of the
said compromise petition, the learned counsel would submit that the order
accepting the compromise was misused inasmuch as the said suits were purported
to have been withdrawn on the ground that the same was a necessary fallout of
the judgment of the High Court, which in effect and substance, it was not.
writ petition filed by Late Dwarka Prasad Agarwal under Article 32 of the
Constitution of India in this Court, the learned counsel would submit that
having regard to the fact that the official respondents had changed the entries
in the register maintained under the Act is a clear pointer to show as to how
the order of the High Court was misunderstood by the statutory authorities. It
was submitted that in terms of the provisions of the Press and Registration of
Books Act, 1867, late Dwarka Prasad Agarwal had acquired various rights coupled
with the common law right as a partner of the partnership firm which could not
have been taken away only with his consent or by operation of law. According to
the learned counsel, in terms of the provisions of the said Act, it is one
thing to say that somebody is the owner of the title in relation to the
newspaper in question and it is another thing that somebody is the printer and
regard maintainability of the writ petition, Mr. Gupta vehemently urged that
the cause of action therefor had arisen in view of illegal action on the part
of the official respondents resulting from misuse of judicial process.
would urge that publication of a newspaper is a fundamental right in terms of
Article 19(1) of the Constitution of India and as the action of the official
respondents directly resulted in infringement of the right of the said writ
petitioners. Reliance, in this connection, has been placed on Express [(1995) 3
A.M. Singhvi, learned senior counsel appearing on behalf of respondent Sudhir
Kumar Agarwal, on the other hand, would submit that as by reason of the order
recording the settlement entered into by and between the parties thereto, by
the High Court, the right of Dwarka Prasad Agarwal was not affected as he was
not bound thereby and further in view of the fact that no writ was issued
against the A.D.M. Jabalpur, the question of appellants' being prejudiced by
reason of the impugned order would not arise. Drawing our attention to the
order dated 13.11.1992 whereby and whereunder the High Court refused to review
its order dated 29.6.1992, the learned counsel would contend that the correct
legal position has been clarified by the High Court, Late Dwarka Prasad Agarwal
could have taken recourse to appropriate legal proceeding to protect his own
interest and, thus, the impugned orders need not be interfered with. As regard
the writ petition filed by Shri Bishambhar Dayal Agarwal, Dr. Singhvi would
contend that from a perusal thereof it would appear that main prayer against
the A.D.M., Jabalpur, was dependent upon the authenticity of the declaration
made by one of the respondents therein and in view of the fact that the parties
had buried their private disputes, at least prayers (3) and (4) could be
granted by the High Court, more so when prayers (1) and (2) thereof had not
would urge that having regard to the provisions contained in Section 5(5) of
the said Act, the writ petition also became infructuous and, thus, there was no
occasion for the High Court to issue any writ. Referring to certain documents,
the learned counsel would argue that as prior to the filing of the writ
petition, Dwarka Prasad Agarwal had given up his own right in the newspaper and
acknowledged the right of his respondents and the company; he had no locus standi
to prefer appeals against the impugned orders of High Court or file the writ
petition. As regard the effect of the consent order the learned counsel relied
upon the decision of this Court in Corporation and Others [(2001) 6 SCC 688].
P.P. Rao, the learned senior counsel appearing on behalf of Smt.
Devi, inter alia, would submit that the writ petition filed before this Court
by Dwarka Prasad Agarwal (since deceased) was not maintainable.
would contend that having regard to the prayers contained in clauses (1) and
(2) thereof, there cannot be any doubt whatsoever that the writ petition before
the High Court was maintainable and only because at a later stage the private
dispute between the parties was resolved, the same by itself would not lead to
a conclusion that the writ petition ceased to be so.
would submit that legality or otherwise of the said compromise cannot be held
to have been questioned by Late Dwarka Prasad Agarwal as no illegality in
relation thereto was pointed out by anybody.
Bhushan, learned Senior Counsel appearing on behalf of Mahesh Agarwal, however,
conceded that the order dated 29.6.1992 of the High Court based on compromise
must be set aside and consequently prayer (a) in the writ petition may also be
granted. However, according to the learned counsel the petitioner is not
entitled to any other relief.
questions of importance, as noticed hereinbefore, have arisen for consideration
in these appeals and the writ petition.
petition is filed in public law remedy. The High Court while exercising a power
of judicial review is concerned with illegality, irrationality and procedural impropriety
of an order passed by the State or a statutory authority. Remedy under Article
226 of the Constitution of India cannot be invoked for resolution of a private
law dispute as contra distinguished from a dispute involving public law
character. It is also well- settled that a writ remedy is not available for
resolution of a property or a title dispute. Indisputably, a large number of
private disputes between the parties and in particular the question as to
whether any deed of transfer was effected in favour of M/s Writer &
Publishers Pvt. Ltd. as also whether a partition or a family settlement was
arrived or not, were pending adjudication before the Civil Courts of competent
jurisdiction. The reliefs sought for in the writ petition primarily revolved
round the order of authentication of the declaration made by one of the
respondents in terms of the provisions of the said Act. The writ petition, in
the factual matrix involved in the matter, could have been held to be
maintainable only for that purpose and no other.
agreement recording terms of settlement between the parties on their private
dispute was executed on 29.6.1992. The application for disposal of the writ
petition in terms of the said agreement as also the order of the High Court in
M.P. No.802 of 1992 was passed on the same day. The writ petition was not ready
for hearing on the said date. Admittedly, Dwarka Prasad Agarwal was not a
signatory to the said agreement. He was also not put on notice there-about.
Assuming that he had engaged an Advocate, keeping in view the fact that he was
a proforma respondent therein, the said learned Advocate was merely required to
watch the proceedings as no relief had been claimed against him. The question
of the learned advocate of Dwarka Prasad Agarwal not raising any objection as
regard legality or otherwise of the said agreement dated 29.6.1992 neither
directly nor indirectly arose for consideration before the High Court. He also
did not make any submission as regard the lawfulness or otherwise of the said
compromise. He merely stated that he had no instruction in the matter. In that
view of the matter, it was obligatory on the part of the High Court to issue
notice to Late Dwarka Prasad Agarwal in respect thereof or to allow sufficient
time to the learned Advocate to obtain proper and adequate instructions.
aforementioned premise, the High Court was furthermore required to apply its
own mind for the purpose of arriving at a finding as to whether it, in public
law remedy, could record the compromise and dispose of the said writ petition
in terms thereof. The order dated 29.6.1992 passed in M.P. No.280 of 1992 was
purported to have been clarified by the High Court in its order dated
13.11.1992 in the review petition being MCC No. 477 of 1977. The said order
clearly demonstrates a total non-application of mind on the part of the High
issues of grave importance were required to be addressed by the High Court. The
High Court sought to take a short cut in holding that the said compromise was
not binding upon Dwarka Prasad Agarwal and thereby no writ was issued. The
consequence of recording of the said compromise was tell-tale. Not only
pursuant thereto or in furtherance thereof the Registrar of Newspapers, New
Delhi, passed an order dated 3.9.1992; it was construed to be a judgment of the
High Court which had been taken aid of by the respondents herein for the
purpose of withdrawal of suits wherein various disputed questions of facts and
law including the genuineness or otherwise of the agreements were in question
and required adjudication. The High Court was also required to address itself,
more so while disposing of the review application, as to whether the purported
settlement on the grounds raised by the appellants herein, was a lawful one.
any application of mind, the High Court proceeded to hold that the agreement
was lawful. It did not pose unto itself the right question so as to enable
himself to arrive at a finding of fact resulting in correct answer thereto and,
thus, the same would amount to a misdirection in law. While doing so, the High
Court did not take into consideration the provisions of the Registration Act or
the said Act and, in particular, Section 19B, proviso appended to Section 6 and
Section 8-B (ii) of the Press & Registration of Books Act, 1867.
High Court also failed and/or neglected to take into consideration the fact
that the compromise having been entered into by and between the three out of
four partners could not have been termed as settlement of all disputes and in
that view of the matter no compromise could have been recorded by it. The
effect of the order dated 29.6.1992 recording the settlement was brought to the
notice of the High Court, still it failed to rectify the mistake committed by
it. The effect of the said order was grave.
found to be enforceable. It was construed to be an order of the High Court,
required to be the implemented by the Courts and the statutory authorities.
Businessman's Association (supra), this Court observed:
We have carefully considered the submissions of the learned Senior Counsel on
either side. The learned Single Judge as well as the Division Bench of the High
Court have not only oversimplified the matter but seem to have gone on an
errand, carried away by some need to balance hypothetical public interest, when
the real and only question to be considered was as to whether the respondent
Authorities are bound by the orders passed by the Court on the basis of the
compromise memorandum and whether the proposed move on their part did not
constitute flagrant violation of the orders of the Court - very much binding on
both the parties. The High Court failed to do justice to its own orders. If
courts are not to honour and implement their own orders, and encourage party
litigants - be they public authorities, to invent methods of their own to
short-circuit and give a go-by to the obligations and liabilities incurred by
them under orders of the court - the rule of law will certainly become a
casualty in the process - a costly consequence to be zealously averted by all
and at any rate by the highest courts in the States in the country. It does
not, in our view, require any extraordinary exercise to hold that the
memorandum and terms of the compromise in this case became part of the orders
of the High Court itself when the earlier writ petition was finally disposed of
on 13-2-1991 in the terms noticed supra, notwithstanding that there was no
verbatim reproduction of the same in the order. The orders passed in this
regard admit of no doubt or give any scope for controversy. While so, it is
beyond one's comprehension as to how it could have been viewed as a matter of
mere contract between the parties and under that pretext absolve itself of the
responsibility to enforce it, except by doing violence to the terms thereof in
letter and spirit. As long as the earlier order dated 13-2-1991 stood, it was not permissible to go behind the same
to ascertain the substance of it or nature of compliance when the manner, mode
and place of compliance had already been stipulated with meticulous care and
detail in the order itself. The said decision was also not made to depend upon
any contingencies beyond the control of parties in the earlier
proceedings." We may, however, hasten to add that we do not intend to put
a seal of our approval to those observations but only wish to point out that as
to how courts or the statutory authority may construe a consent order.
terms of Section 141 of the Code of Civil Procedure, the provisions thereof are
not applicable in a writ proceeding. No provision of the Code of Civil
Procedure has been made applicable in terms of the rules framed by the High
Court of Judicature at Nagpur dated 25.9.1951 framed under Article 225 of the
Constitution of India. In any event the applicability of the provisions of the
Code of Civil Procedure, if any, would be only with regard to the procedural
and machinery provisions contained therein but thereby no new right could be
created. Even if the provisions of Order 23, Rule 3 of the Code of Civil
Procedure and/or principles analogous thereto are held to be applicable in a
writ proceeding, the Court cannot be permitted to record a purported compromise
in a casual manner. It was suo motu required to address itself to the issue as
to whether the compromise was a lawful one and, thus, had any jurisdiction to
entertain the same. It may be true, as has been contended by Mr. Rao, that the
writ petition was maintainable at the threshold. But once it is held that by
reason of the purported settlement between the private parties, the High Court
was not required to issue any writ, it could only either permit the petitioner
to withdraw the writ petition and dismiss the same as having become infructuous.
The High Court derives its jurisdiction in terms of Article 226 of the
Constitution of India, if an occasion arises therefor, to make judicial review
of the order passed by a statutory authority. It is beyond any cavil that no
writ can be issued if the disputes involve private law character. The writ
court has also no jurisdiction to determine an issue on private dispute over a
property or right under a partnership. While purporting to record a compromise,
the writ court cannot enlarge its jurisdiction by directing that the suits pending
in different courts filed or different causes of action would also stand
compromised. By reason thereof the writ court would be entrenching upon the
jurisdiction of the civil court indirectly which it could not do directly.
the purpose of granting permission even for withdrawal of suit in terms of
Order 23, Rule 1 of the Code of Civil Procedure, the civil courts themselves
were required to apply their mind as to whether having regard to the dispute
between the parties, a case therefor has been made out or not.
civil court is required to act on its own and not on the basis of any direction
of any other court determining a totally foreign issue.
a writ court can pass an effective order provided it has jurisdiction in
relation thereto. With the enlargement of the power of the court recording
compromise in view of the Code of Civil Procedure (Amendment) Act, 1976, the
responsibility and duty of the court also has increased. By reason of Order 23,
Rule 3 of the Code of Civil Procedure, a party can challenge the legality of
the compromise only before the same court and in that view of the matter the
court was enjoined with a solemn duty to decide such controversy in a lawful
manner. A question as to whether a compromise is void or voidable under the
Indian Contract Act or any other law for the time being in force, would have,
thus, to be determined by the court itself. Once it is held that the agreement
or the compromise was fraudulent, the same per se would be unlawful and the
court is required to declare the same as such.
now well-settled that an order passed by a court without jurisdiction is a
nullity. Any order passed or action taken pursuant thereto or in furtherance
thereof would also be nullities. In the instant case, as the High Court did not
have any jurisdiction to record the compromise for the reasons stated
hereinbefore and in particular as no writ was required to be issued having
regard to the fact that public law remedy could not have been resorted to, the
impugned orders must be held to be illegal and without jurisdiction and are
liable to be set aside. All orders and actions taken pursuant to or in
furtherance thereof must also be declared wholly illegal and without
jurisdiction and consequently are liable to be set aside. They are declared as
is another aspect of the matter which must also be taken notice of. A party
cannot be made to suffer adversely either indirectly or directly by reason of
an order passed by any court of law which is not binding on him. The very basis
upon which a judicial process can be resorted to is reasonableness and fairness
in a trial. Under our Constitution as also the International Treaties and
Conventions, the right to get a fair trial is a basic fundamental /human right.
Any procedure which comes in the way of a party in getting a fair trial would
be violative of Article 14 of the Constitution of India. Right to a fair trial
by an independent and impartial Tribunal is part of Article 6(1) of the
European Convention for the Protection of Human Rights and Fundamental Freedoms
1950 (See Clark (Procurator Fiscal, Kirkcaldy) v Kelly  1 All ER 1106).
even if the Petitioner herein had filed a writ petition before the High Court
in terms of Article 226 of the Constitution of India, the same would not have
been entertained as the impugned order had been passed consequent to and in
furtherance of the purported consent order passed by the High Court.
Ordinarily, the High Court would not have issued a writ of certiorari for
quashing its own order. Even in that view of the matter too, it is apposite
that this petition under Article 32 should be entertained.
may, however, hasten to add that as at present advised we do not intend to
enter into the contention of the petitioners that their fundamental right under
Article 19 of the Constitution of India had been infringed. This Court would
have entered into the question, if the facts were undisputed or admitted. The
question as regard infringement of fundamental right and that too under Article
19 of the Constitution of India cannot be gone into when the facts are
disputed. Whether Dwarka Prasad Agarwal and consequently the substituted
petitioners are owners of the newspapers and if so to what extent being
disputed, it cannot be said, that by reason of the impugned order dated
3.9.1992 passed by the first respondent herein alone, the fundamental right of
the petitioners under Article 19 had been infringed.
are, therefore, of the opinion that the interest of justice would be sub-served
if the appeals and the writ petition are allowed and the impugned orders dated
26.9.1992 and 13.11.1992 passed by the High Court as also the order dated
3.9.1992 passed by the first Respondent, Registrar, Newspapers for India, are
quashed. All action taken and all orders passed by the statutory authorites and
the civil courts as referred to hereinbefore shall also stand quashed. As a
logical corollary to our order, it must also be held that the writ petition
filed by Late Bishambhar Dayal Agarwal does not servive and must, therefore, be
dismissed. The consequence of this order would be that the parties shall be
relegated to the same position in which they were immediately prior to the
passing of the order dated 26.9.1992. All parties, statutory authorities and
courts including the civil courts are directed to act accordingly.
appeals and writ petition are disposed of accordingly with costs. Counsel's fee
assessed at Rs.25,000/- (Rupees twenty five thousand only).