Shankara Co-op
Housing Society Ltd. Vs. M. Prabhakar & Ors.
J U D G M E N T
H.L. Dattu, J.
1.
We
grant leave in the special leave petition filed by the State of Andhra Pradesh.
2.
In
these civil appeals, we are required to consider essentially the erstwhile legislations
with regard to the administration of property left behind in India by evacuees
migrated to Pakistan during partition and the compensatory redistribution of the
same amongst those persons who had migrated from Pakistan, leaving behind their
property, at the time of partition.
3.
The
subject matter are the lands in Survey Nos. 9, 11, 47, 140, 141, 142, 143, 151,
152, 153, 676 and 677, admeasuring about 90.08 acres, situated at Khapra Village,
in the erstwhile Medchal Taluk (now Vallabhnagar Taluk) of the Ranga Reddy District,
Andhra Pradesh [hereinafter referred to as `the disputed lands'].
4.
In
this batch of three civil appeals, the appellant is the subsequent purchaser of
the property in dispute from the allottees under the provisions of The Displaced
Persons (Compensation and Rehabilitation) Act, 1954 (hereinafter referred to as,
"the Displaced Persons Act"). It assails the judgment and order of the
Division Bench of the High Court of Andhra Pradesh in WP No. 17722 of 1990 dated
27.04.2000. The State Government has also filed Special Leave Petition (c) No.
6964 of 2001 under Article 136 of the Constitution, in defense of the
notification which was struck down by the impugned judgment. Since the facts
and questions of law raised before us are the same in all these civil appeals,
we will take up C.A. No. 4099 of 2000, in the case of Shankara Co-op. Housing
Society Ltd. as the lead case for the purpose of narrating the facts leading upto
the impugned judgement.
5.
The
facts in extenso require to be noticed. They are:- The disputed lands originally
belonged to one Mandal Bucham, whose legal representatives are respondents herein.
Shri Mandal Bucham had borrowed paper currency from late Rahim Baksh Khan and
since he failed to discharge the amount due, late Rahim Baksh Khan had filed a civil
suit against Mandal Bucham before the District and Sessions Judge at Hyderabad
District. It appears that the Court had passed a judgment and decree in favour
of late Rahim Baksh Khan. In the execution proceedings of the decree, it is
alleged that late Rahim Baksh Khan had purchased the disputed lands belonging to
Mandal Bucham in an auction under the supervision of the Court. Rahim Baksh
Khan expired in the year 1940 and later on, it appears, his legal representatives
had migrated to Pakistan after partition of India.
6.
It
is averred that the Deputy Custodian and Collector, Hyderabad District, had
issued notice dated 11.01.1951, to the legal heirs of late Rahim Baksh Khan,
namely Mr. Rafi Mohammed Khan and Mr. Shafi Mohammed Khan, under sub-Section (1)
of Section 7 of the Administration of Evacuee Property Act, 1950 [hereinafter
referred to as "the Evacuee Property Act"] inter alia stating that the
"disputed lands" belonged to late Rahim Baksh Khan and they have
migrated to Pakistan and they are evacuee and, therefore, he would hold an enquiry
in the matter on 27.01.1951 and any person having any share or interest in the
above "disputed lands" are directed to participate in the proceedings
with necessary documents in support of their claim. It appears that general notices
were also published in the village in which the said lands were situated on 26.01.1951.
Notice was also given to the ancestors of the contesting respondents on
15.02.1951. It is stated that neither the contesting respondents nor anybody
else had filed any objection to the notice issued under Section 7(1) of the Evacuee
Property Act.
7.
After
conducting a detailed enquiry in respect to the claim of ownership of the said property,
the Deputy Custodian and Collector issued a Notification No.55, in NO CE/4064 to
4080 dated 4 11.12.1952, declaring the disputed property in issue as an Evacuee
Property under Section 7 of the Evacuee Property Act. This notification was subsequently
published in the Hyderabad Government Gazette. Pursuant to the aforesaid
declaration, the name of the Collector/Custodian was entered in the Revenue
Records. After such declaration, the Central Government has acquired the
"disputed lands" by issuing notification under Section 12 of the Displaced
Persons Act for the rehabilitation of the persons who were displaced during the
partition.
8.
The
erstwhile owners of the property or the ancestors of the contesting respondents
did not question the declaration of the "disputed lands" as evacuee property
and the subsequent acquisition by the Central Government. It was on or about in
the year 1955, the ancestors of the respondents herein claimed ownership of the
`disputed lands' and made their representation before the authorities under the
Evacuee Property Act. The authorities, however, had informed them that they should
prefer an appeal or a review petition. In spite of such counsel, they continued
to make representations and petitions in furtherance of their claim.
9.
The
Tahsildar, Medchal Taluk, issued a letter dated 29.06.1966, inter- alia, seeking
to auction the "disputed lands" on yearly lease basis. Aggrieved by the
action of the authorities, Shri. Mandal Anjaiah, claiming to be ancestor of the
contesting respondents, preferred a writ petition before the Andhra Pradesh
High Court, in No. 1051 of 1966, inter-alia, seeking a writ of prohibition or direction
restraining the respondents in the petition from auctioning the "disputed
lands" and to direct the authorities to decide the representations/
petitions filed by the writ petitioner. The Regional Settlement
Commissioner/Custodian of Evacuee property was arrayed as one of the respondents
to the proceedings. In his affidavit dated 21.08.1967, he had averred that the notice
as required under Section 7 of the Evacuee Property Act read with Rule 6 of the
Rules notices had been issued to all the parties interested in the disputed
lands.
10.
During
the pendency of the writ petition, a portion of the land was allotted to one
Smt. Eshwari Bai, and therefore, she was impleaded as one of the respondents in
the writ petition. During the pendency of this writ petition, other contesting respondents
had filed a Revision Petition under Section 27 of the Evacuee Property Act before
the Deputy Custodian General, Jaisalmer House, New Delhi, to revise the 6 notification
dated 11.12.1952 declaring the disputed lands as evacuee property.
11.
The
writ petition came to be dismissed by the High Court vide its order dated 14.06.1968
on the ground that the claim of the respondents is highly belated and they have
also not exhausted the alternate remedy provided under the provisions of the Evacuee
Property Act. The order passed by the Court has some relevance and, therefore,
the same is extracted. It reads :- "In this application for the issue of a
writ under Article 226 of the Constitution, what is sought to be challenged by
the petitioner is an order of the Deputy Custodian of Evacuee Property under
Section 7 of the Administration of Evacuee Property Act declaring certain
properties as evacuee properties. The notification was made on 11.12.1952. The petitioner
did not avail himself of the remedy provided under Section 24 of the Act by way
of an appeal. In fact, in 1955 and again in 1957 and 1959, he appears to have approached
the Deputy Custodian with a request that the land should not be treated as evacuee
property and on all these occasions, he was informed that he should go in
appeal and not file review applications. It is not open to the petitioner without
preferring an appeal, to approach this court at a late stage with a petition
for the issue of a writ. There are no merits in this writ petition and it is
therefore dismissed with costs."
12.
After
the dismissal of the writ petition, some portion of the lands was allotted to Shri.
Gopaldas and Shri. Jangimal on 15.09.1968 and to Shri. Mathuradas (legal heir
of Shri. Valiram Hiramal) on 21.11.1968. Sanads (Transfer of Titles and Rights)
were also issued to them and their names were recorded in the revenue records.
13.
As
we have already noticed, some of the legal representatives of late Mandal
Bucham had approached the Deputy Custodian General, New Delhi by filing a revision
petition under Section 27 of the Evacuee Property Act, inter alia questioning
the notification dated 11.12.1952. The Deputy Custodian General vide his order
dated 25.09.1970, had allowed the revision petition and remanded the case to Custodian-
cum-Collector, Hyderabad District for re-determination of the evacuee nature of
the lands after affording an opportunity of hearing to all the parties.
14.
After
such remand, Collector-cum-Deputy Custodian of Evacuee Property had conducted a
re-enquiry and he had concluded that there was no evidence to show that late
Rahim Baksh Khan came to be the owner of the land in pursuance of an auction by
the Court in execution of any money decree. Hence, the Collector-cum-Deputy Custodian
8 vide order dated 28.05.1979 came to the conclusion that since there were no
records available to the contrary, Shri. Mandal Bucham and the other contesting
respondents continue to be the owners of the disputed lands.
15.
Aggrieved
by the aforesaid order, the allottees had filed a Revision Petition before the Chief
Settlement Commissioner of Evacuee Property, Hyderabad under the Displaced Persons
Act, who, by an order dated 27.10.1979, had called for the records of the case
in order to review the aforementioned order of the Collector-cum- Deputy Custodian
dated 28.05.1979. It appears that in view of the pendency of the proceedings, the
Tahsildar refused to give possession of the "disputed lands" to the
allottees (who had sanads in their name) in the light of the aforesaid order of
the Collector-cum- Deputy Custodian, Hyderabad District.
16.
The
Chief Settlement Commissioner of Evacuee Property, by his order dated
11.05.1983, set aside the aforesaid order of the Collector- cum- Deputy
Custodian, and declared that the said property belonged to late Rahim Baksh
Khan and that by virtue of the Notification No. 9 55 in NO CE/4064 to 4080 of
1952, the disputed lands are evacuee property.
17.
Once
again, the contesting respondents had filed a revision petition under Section
33 of the Displaced Persons Act before the Secretary, Revenue Department, Govt.
of Andhra Pradesh to revise/review the aforesaid order, which came to be rejected
vide order dated 23.07.1983.
18.
The
contesting respondents filed a writ petition No. 7517 of 1983 before the High Court
of Andhra Pradesh, inter alia, requesting the court to direct the authorities under
the Displaced Persons Act to initiate suo-moto proceedings to determine the
claim of ownership of the disputed lands. The High Court, by its order dated 26.07.1988,
dismissed the writ petition, inter alia holding that it cannot compel any authority
to initiate and dispose of the suo moto proceedings under Section 33 of the
Displaced Persons Act.
19.
The
contesting respondents filed another Writ Petition No.17722 of 1990 on
13.11.1990 (from which the impugned judgment has arisen) before the High Court,
inter alia requesting the High Court to issue a writ or order directing the Commissioner,
Survey Settlement and Land 10 Records/Chief Settlement Commissioner, Evacuee Property,
Hyderabad to conduct an enquiry into questions of title of "disputed lands"
and correctness of the declaration of the said property as evacuee property in pursuance
of proceedings of the Chief Settlement Commissioner dated 27.10.1979. It is relevant
to notice that the contesting respondents did neither seek for the quashing of the
Notification No. 55 in NO CE /4064 to 4080 dated 11.12.1952, nor made the present
appellant a party to the writ proceedings. Subsequently, on 13.03.1997, the prayer
in the writ petition was sought to be amended to include a prayer to quash the Notification
No. 55 in NO CE 4064 to 4080 dated 11.12.1952, which was allowed on 27.08.1998.
As the present appellant was not made party to the proceeding, it sought to implead
itself by filing an application on 22.01.1999, and the same was allowed on
27.08.1999.
20.
By
the impugned judgment dated 27.04.2000, the learned Division Bench of the High Court
allowed the writ petition by setting aside the order passed by the Chief
Settlement Commissioner dated 11.05.1983 and restored the order passed by the
Collector-cum-Deputy Custodian of Evacuee Property dated 28.07.1979. Aggrieved by
the Judgment 11 and order passed, the appellant-Shankar Co-operative Housing Society
has come before us in these civil appeals.
21.
The
subject matter of the Civil Appeal No. 4100 of 2000 pertains to the lands in
Survey No. 152 admeasuring about 13.17 acres. These lands were originally allotted
to Mathura Das on 26.11.1968, Subsequently, Mathura Das has executed General
Power of Attorney (GPA), in favour of P.H. Hasanand and Chandumal dated
19.12.1966. Before us, the appellant -P.H. Hasanand as General Power of Attorney
Holder of the late Mathura Das (who died on 30.5.1970) is assailing the
Judgment and order of the Division Bench of the High Court in W.P. 17722 of 1990
dated 27.4.2000. It is relevant to mention that the Special Leave Petition
filed by Mathura Das through his legal representatives has been dismissed by an
order made by this Court dated 13.8.2007 on the ground of delay.
22.
The
subject matter in Civil Appeal No. 4101 of 2000 pertains to lands in Survey nos.
9,11,140,142,143,676 and 677, admeasuring about 20.27 acres. These lands were
originally allotted to Smt. Eswari Bai on 30.11.1966. During her life time, she
had executed a General Power of Attorney in favour of Thakur Hadanani on 06.08.1999.
12 During the pendency of the appeal, Smt. Eswari Bai expired. The application
filed by Thakur Hadanani to bring legal representatives of Smt. Eswari bai was dismissed
by this Court vide its order dated 30.03.2010 as General Power of Attorney
holder of deceased has no locus- standi to file the appeal. In this appeal, the
appellants before us are (1) P. Laxmi Patni, who is the son-in-law of P.M. Rao;
(2) Vidya Devi, legal representative of Seetha Devi wife of Gopal Das and (3) Thakur
Das is minor and represented by Smt. Vidya Devi.
23.
One
of the appellants before us is a co-operative society, styled as Shankara
Co-op. Housing Society Ltd. [hereinafter referred to as `the society']. The said
society has 600 members who are Government employees. The society has purchased
the lands in disputes from the General Power of Attorney holders of three of
the original allottees, namely, Shri. Gopaldas, Shri. Jangimal and Shri. Mathuradas,
by paying the entire sale consideration. It is asserted that the Society, after
obtaining permission from the competent authorities, has allotted residential plots
carved out of the "disputed lands" to its members.
24.
We
have heard Shri. P.S. Narasimha, learned senior counsel and Shri. C. Mukund, learned
counsel for the appellants and Shri. Ranjit 13 Kumar and Shri. L. Nageshwar Rao,
learned senior counsel for the respondents. The State of Andhra Pradesh is
represented by Shri. T.V. Ratnam, learned counsel.
25.
Shri.
C. Mukund, learned counsel who appears for the appellants in C.A. No. 4100 of 2000
and C.A. No. 4101 of 2000, submits apart from others, that the delay and laches
on the part of the contesting respondents in approaching various authorities for
redressal of their grievances, would disentitle them to claim any reliefs. It
is submitted that repeated representations filed before the authorities would
not be a ground to condone the delay and it is further submitted that there is inordinate
delay in filing the writ petition from the date of notification issued under
the Evacuee Property Act; the claim of the respondents is barred by principles of
constructive Resjudicata since in the writ petition filed by the respondents
before Andhra Pradesh High Court, the plea of non-service of notice on the interested
persons while declaring the said lands as an evacuee property was not raised,
though it was available to them; that the question of facts as to title of the said
lands, etc., could not have been gone into by the High Court in its writ
jurisdiction, under Article 226 of the Constitution; and that since the
"disputed lands" have already been acquired under the Displaced Persons
Act, the contesting respondents cannot have any right, title and interest over
those lands.
26.
While
elaborating the issues raised, Shri. Mukund, learned counsel, submits that
right from the beginning, the contesting respondents have either approached the
authorities under the Evacuee Property Act or approached the judicial forums belatedly,
or have gone before the wrong forum seeking either incorrect or incomplete reliefs.
He submits that the competent authority under the Evacuee Property Act had not only
issued the individual notices to the evacuee but also public notice was also
issued on 26.01.1951.
He further states
that the ancestors of the contesting respondents were served with a notice dated
15.02.1951. He also submits that there can be no dispute that the
"disputed lands" belonged to late Rahim Baksh Khan, as his name was recorded
in the land revenue records. He further submits that there was no challenge to the
declaration of the lands as evacuee property upto the year 1955, and for the
next 11 years, upto 1966, the contesting respondents made only repeated representations
to the authorities, without approaching the proper judicial forum provided under
the Evacuee Property Act. He further asserts, that even in 1966, when the first
writ petition was filed, the only prayer that was made 15was to set aside the action
of the Tahsildar seeking to auction the lands for granting Ek saala lease and
not to quash the Notification No. 55 dated 11.12.1952, which had declared the disputed
lands as evacuee property.
He points out that there
was no averment in the writ petition filed in the year 1966 regarding
non-service of the notice, which is one of the principal grounds taken by the contesting
respondents in the subsequent writ petition. Shri. Mukund further asserts that at
no point of time prior to the 1997 amendment to the impugned writ petition, a
challenge was made to the Notification No. 55 dated 11.12.1952, declaring the
lands as evacuee property. He then referred to the counter affidavit filed by
the State Government before the High Court in the 1966 writ petition which states
that the contesting respondents were in possession of the land on the basis of
Ek Saala or annual lease for the purpose of cultivation, and they had not paid the
lease amount, and when their eviction was being attempted, they claimed ownership.
Subsequently, even after the dismissal of the 1966 writ petition, Shri. Mukund submits
that the contesting respondents again did not pursue the correct remedies after
the 1983 order.
In summation, Shri. Mukund
contends that the contesting respondents did not take any steps from the time
the notice 16 was issued [period between 1951 to 1955], after which they made repeated
representations to the authorities, which came to be rejected [period between
1955 to 1959] and then filed the writ petition in 1966 [without doing anything for
7 years for the period between 1959 to 1966]. After this, he states even pursuant
to the 1983 Order, again they did not follow the correct course, till the filing
of the writ petition in the year 1990. Even when the writ petition was filed, the
notification declaring the said lands as evacuee property was not challenged.
In other words, Shri. Mukund asserts that every time the contesting respondents
raised their voice in protest, they did it before a wrong forum or seeking the
wrong or incomplete reliefs.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
The
learned counsel further submits that a person who seeks intervention of the
court under Article 226 of the Constitution should give satisfactory explanation
of his failure to assert his claim at an earlier date. The excuse for his
procrastination should find a place in the petition submitted by him and the
facts relied upon by him should be set out clearly in the body of the petition.
An excuse that the contesting respondents were making repeated representations before
various forums cannot merit serious consideration. In aid of his submission, the
learned counsel has invited our attention to the 17 observations made by this
court in City and Industrial Development Cooperation Vs. Dosu Andershir Bhiwandiwala
and Anr. (2009) 1 SCC 168 (Paras 26-30), S. S. Balu and Another Vs. State of Kerala
and others (2009) 2 SCC 479(Para 17), New Delhi Municipal Council Vs. Pan Singh
and others (2007) 9 SCC 278 (paras 17-18) and K.V. Rajalakshmiah Setty & Anr.
Vs. State of Mysore and Anr. (1967) 2 SCR 70.
28.
In
support of his second submission, Shri. Mukund invites our attention to the
judgment and order in Writ Petition No.1051 of 1966 dated 14.06.1968 and
submits that the same had been decided not only on merits but also on the ground
that the writ petitioners had not availed the alternate remedy available under
the Act. Alternatively, the learned counsel contends that non-service of notice
as required under Section 7 of the Evacuee Property Act and the Rules framed thereunder
was not raised, though the same was available to the contesting respondents and
therefore, they could not have been permitted to take that plea in the subsequent
writ petition filed. Therefore, subsequent writ petition from which, the present
appeal arises, is barred by the principles analogous to res judicata. In aid of
his submission, our attention is drawn to the decisions of this court in 18 Thakore
Sobhey Singh Vs. Thakur Jai Singh and others (1968) 2 SCR 848, Mohan lal Goenka
Vs. Beney Krishan Mukher Jee and others (1953) SCR 377 and Shashivraj Gopalji
Vs. Ed. Appakath Ayissa and others 1949 PC 302.
29.
Leaned
counsel Shri. Mukund further urged that it is settled law that the fact finding
task undertaken by the High Court, which is evident from the impugned judgment,
is not warranted in a writ petition filed under Article 226 of the Constitution
of India. He attempts to make good his argument by reading out passages from
the impugned judgment, and attempts to impress upon us that the prolixity of
the judgment clearly showed that the questions of fact had been gone into by the
High Court while granting reliefs to the respondents. This, according to the
learned counsel, is impermissible. In aid of his submission, the learned
counsel has invited our attention to the observations made by this Court in the
case of Surya Dev Rai Vs. Ramchander Rai and others (2003) 6 SCC 675, Ranjeet
Singh Vs. Ravi Prakash (2004) 3 SCC 682 and Karnataka State Industrial Investment
and Development Corporation Ltd. Vs. Cavalet India Ltd. and others (2005) 4 SCC
456.
30.
Shri.
Mukund submits that once the `disputed lands' are acquired under the Displaced
Persons Act and allotted to the displaced persons, the Deputy Custodian of Evacuee
Property will have no jurisdiction to initiate any proceedings under the Evacuee
Property Act. He submits that the object of the two legislations are such that the
Evacuee Property Act enabled that Government to first identify property as evacuee
property and notify the same, after which, the Government would acquire such
property under the Displaced Persons Act and distribute the same to the
displaced persons. He contended, once such acquisition and redistribution take place
under the Displaced Persons Act, the Deputy Custodian loses all his
jurisdiction under the Evacuee Property Act to deal with the evacuee property.
In other words, he contends that once property was distributed under the Displaced
Persons Act to the displaced persons, it loses its evacuee status, and the
status of such land had attained finality, and the same cannot be challenged. Reference
is made to the observation of this court in the case of Major Gopal Singh and Others
Vs. Custodian Evacuee Property (1962) 1 SCR 328, Basant Ram Vs. Union of India (1962)
Supp. 2 SCR 733 and Defedar Niranjan Singh and another Vs. Custodian Evacuee
Property and another (1962) 1 SCR 214.
31.
Shri
Mukund assails the judgment and order of the High Court as perverse on the
ground: (a) that the High Court has not taken into consideration the fact that the
contesting respondents had taken the lands on an Ek Saala lease, for which they
defaulted in making payment; (b) that the High Court had completely overlooked the
Order passed by the Chief Settlement Commissioner dated 11.05.1983; (c) that
the plea of notice, not being served, was not taken in the writ petition filed
in the year 1966. Therefore, it was not open for the contesting respondents to raise
such contention in the subsequent proceedings.
32.
With
regard to the question of non-service of notice, Shri. Mukund would contend
that if the contesting respondents were in possession of the said lands, as
claimed by them, they cannot plead that they were not served with the notice
issued under sub-section (1) of Section 7 of the Evacuee Property Act. He
further submits that the conduct of the contesting respondents cannot be
brushed aside and had a very vital bearing on this case. He also points out that
the revenue records produced by the State Government before the High Court
would show late Rahim Baksh Khan as the owner of the property, a fact that was overlooked
by the High Court in the impugned judgment.
33.
Shri.
P.S. Narasimha, learned senior counsel appearing for the Society, prefaces his
submission with the purpose and object behind the enactment of the Evacuee
Property Act and the Displaced Persons Act. He contends that property that was
acquired under the Evacuee Property Act as evacuee property was redistributed to
displaced persons for a consideration, and that the sanads issued were actually
sale deeds. He further states that there were no prohibition/restriction in the
sanads for alienation of the property under the provisions of the Displaced Persons
Act and, therefore, gave finality to question of ownership of the lands. While adopting
the submissions of Shri. Mukund, the learned senior counsel would contend that once
the Displaced Persons Act comes into operation, the operation of the Evacuee
Property Act comes to an end. He further emphasized that the contesting
respondents could not be permitted to take advantage of their own wrongs,
especially when third party rights had already been created. He also urged that
the subsequent writ petition filed by the contesting respondents should have
been dismissed by the High Court for the same reason for which earlier writ petition
was dismissed inasmuch as the cause of action in both the petitions being the
same, the subsequent writ petition would be barred by the principles analogous
to res judicata.
34.
Shri.
T.V. Ratnam, learned counsel appearing for the State of Andhra Pradesh, submits
that the Evacuee Property Act is a complete code by itself, with a mechanism to
deal with the question of evacuee nature of the property. He states that once it
is decided by the Custodian, in exercise of his powers under the Act, that the
property was an evacuee property, then it was not available for challenge in a
writ petition filed under Article 226 of the Constitution. Such declaration can
be questioned only by filing either an appeal or revision, as provided under
the Act. He further states that the contesting respondents did not follow the procedure
prescribed under the Act. Even when the Revision filed by them was rejected by
the Custodian, the same was never challenged. The learned counsel pointed out in
the pahani pathra or revenue records that persons other than the contesting respondents
were also in possession of the land, along with Shri. Mandal Anjaiah, and
states that this possession was in pursuance of the Ek Saala lease that was granted
in their favour. The learned counsel points out that the revenue records would
clearly prove that it is the Custodian who was the owner and in possession of
the lands in dispute. He also emphasized that there was inordinate delay in challenging
the notification dated 11.12.1952 and the High Court ought not to have
entertained the writ petition filed in the year 1990 and unsettle the settled
things.
35.
Per
contra, Shri. Ranjit Kumar, learned senior counsel, submitted that though late Rahim
Baksh Khan had a money decree in his favour against Shri. Mandal Bucham, an ancestor
of the contesting respondents, the same was never executed. He further states
that there was no warrant for execution against the disputed lands in favour of
late Rahim Baksh Khan. He submits that there is nothing on record to show how
the rights of the contesting respondents got extinguished. It is his further submission
that a proper enquiry, as required under Evacuee Property Act, was not
conducted with regard to the nature of the lands. He submits that from the
records, it can be made out that the Collector was informed by the Tahsildar
that the lands in question were in the name of Mandal Bucham. He also states, that
the requirements of personal notice as per Rule 6 of the Administration of Evacuee
Property (Central) Rules, 1950 [hereinafter referred to as `the EP Rules'] were
not complied with. He also states that the contesting respondents have always been
in possession of the said lands, as admitted by the Government, in its counter
affidavit.
36.
With
regard to the question of delay and laches which was the forefront of the submission
of Shri. Mukund, learned counsel, he submits that the contesting respondents,
who were poor and illiterate farmers, have been continuously making representations
and filing petitions before the various authorities, from the time they had the
knowledge of the status of the property being declared as evacuee till the
filing of the writ petition in 1966. He further states that since they were in
possession of the land, when they came to know that the said lands were being
auctioned, they moved the High Court under Article 226 of the Constitution,
without further delay. He contends that there were no third party rights at least
till 1966, and that the contesting respondents were in possession of the lands
and were cultivating the same, and when their possession was threatened, they
moved the High Court for appropriate reliefs. It is further submitted that the High
Court has merely disposed of the writ petition filed only on the ground that the
petitioners therein had not exhausted alternate remedy available to them under
the Evacuee Property Act.
37.
Shri.
Ranjit Kumar further submits that the lands allotted to Shri. Gopal Das and Shri.
Jangimal that were made in 1968, and were cancelled by the Custodian, as the
two allotees did not come forward to take possession of the same, vide order
dt. 21.11.1987. With regard to the lands allotted to Shri. Mathuradas, the
learned senior counsel would submit that this Court, by an order dt.
13.08.2007, dismissed the Special Leave Petition filed by the legal representatives
of Shri. Mathuradas against the impugned judgment, on the ground of delay, as
well as on merits.
38.
The
learned senior counsel then drew our attention to the revision undertaken by an
order of the Dy. Custodian General in the year 1970, who found that Shri. Mandal
Bucham was the pattedar and that the status of the lands required enquiry as
there was no evidence to the claim that late Rahim Baksh Khan had purchased the
said lands in an auction, as claimed by the appellants. Since the question of
title was involved, the matter was rightly remanded back to the Collector-cum- Dy.
Custodian, who, vide order dt. 28.05.1979, came to the conclusion that the lands
were owned by the ancestors of the contesting respondents and the revenue
records support their case.
39.
The
learned senior counsel also submits that the Order passed by the Chief Settlement
Commissioner dated 11.05.1983 is manifestly illegal, as the Collector-cum-Dy. Custodian,
was not one of those authorities whose order could have been revised by the Chief
Settlement Commissioner in exercise of his jurisdiction under Section 24 of the
Displaced Persons Act. Since the powers conferred under the aforesaid Section is
only to revise those orders passed by the officers notified under the provisions
of Displaced Persons Act. Therefore, it is argued that the said order is one
without jurisdiction.
40.
Shri.
Ranjit Kumar rebuts the claim of the appellants that notice was served on the
contesting respondents. He states that notice could not have been served on
legal heirs of late Rahim Baksh Khan, who were in Pakistan, and were unlikely
to come back; no notice was issued to the contesting respondents. On a query
from the bench regarding as to why the contesting respondents held an Ek Saala
lease if they owned the property, he submits that there was absolutely no
record to show that the rights of the contesting respondents had been extinguished.
He further submits in rebuttal to the contention of the appellants of pursuing the
wrong remedies, by stating that a writ petition under Article 226 was the only remedy
available, as Section 36 of the 27 Displaced Persons Act bars the jurisdiction of
civil courts. He also states that the argument of the appellants that once the lands
are acquired by the Central Government under the Displaced Persons Act, the
property ceases to be evacuee property and becomes the property of the Central
Government, depends on the factor that the property is notified as evacuee property
after following the due procedure prescribed under the Evacuee Property Act and
the Rules framed thereunder. He further urged that if the property in question is
not evacuee property, there is no question of the coming into operation of the
Displaced Persons Act.
41.
Shri.
Ranjit Kumar further submits that the appellants are not the original allottees
and they are only subsequent purchasers, from the general power of attorney
(`GPA') holders of the original allottees. In some cases, he contends, the GPA
holders have sold the property after the death of the principal, and in other cases,
GPA holders of GPA holders of original allottees have sold the lands and in both
cases, he submits that the same is impermissible in law. He further contends that
the allotment to Shri. Gopal Das and Shri. Jangimal was cancelled in the year
1989, the Special Leave Petition of Shri. Mathuradas had been dismissed in the
year 2007, and that this Court had disallowed 28 the substitution of the legal
heirs of Smt. Eshwari Bai, on her death, due to which appellants cannot
maintain these proceedings.
42.
In
summing up his contention, the learned senior counsel states that the Notification
dated 11.12.1952 issued under sub-Section (1) of Section 7 of the Evacuee
Property Act was manifestly illegal and the disputed lands could not have been
declared as evacuee property, as the owners were not evacuee; that the argument
of delay and laches was not available to the appellants, as the original
allottees who had claimed that they weren't made a party have been heard at all
stages right from the first writ petition in the year 1966; that the question
of Ek Saala lease cannot be put against the respondents as the name of the contesting
respondents was recorded in the Revenue records as owner of the lands; that the
proceedings under the Displaced Persons Act can take place only if the
proceedings under the Evacuee Property Act are validly made; that the proceedings
under Section 24 of the
Displaced Persons Act
culminating in the order of Chief Settlement Commissioner in the year 1983 is
illegal, for the reason it can be done only of those orders passed by the
officers notified in Section 24 of the Act, and that the order of Chief Settlement
Commissioner is without jurisdiction and hence is a nullity; that the High
Court could 29 correct any manifest illegality, such as declaring the disputed
lands as evacuee property, under its writ jurisdiction, which need not be interfered
with by this Court under Article 136; that the disputed questions of fact had
to be necessarily gone into by the High Court under its writ jurisdiction due
to the bar of jurisdiction of other Courts by virtue of Section 36 of the Displaced
Persons Act; that the contesting respondents were in possession of the lands
and continues to be so even till this day and this position is accepted by the
State Government in the counter affidavit filed before this court; assuming that
there was some delay on the part of the contesting respondents for redressal of
their grievances before various forums, since the same has been condoned by the
writ court, this court need not interfere with the said order.
43.
Shri.
L. Nageshwar Rao, learned senior counsel who appears for the contesting
respondents in the Special Leave Petition filed by the State, supplemented the
arguments of Shri. Ranjit Kumar. He also submitted that the only issue was
whether the nature of the property was such that it fell within the ambit of evacuee
property or not. He also submits that if the facts were not gone into by the
High Court, there could be no decision on this aspect, and once this aspect was
decided 30 in favour of the contesting respondents, then nothing remains to be decided
by this Court.
44.
The
learned counsel have referred to several case laws for the many propositions
they have canvassed before us. The relevance of these decision we will deal
with at appropriate stage.
45.
In
the background of these facts, the following questions arise for our consideration
and decision: (1) Whether the contesting respondents have been guilty of delay
and laches. (2) Whether the dismissal of the writ petition No. 1051 of 1966 by the
High Court decided the matter fully and finally. (3) Whether the lands in question
are evacuee property as defined under the Evacuee Property Act. (4) What is the
effect and the consequence of the notification issued under Section 12(1) of
the Displaced Persons Act. (5) Whether the High Court could have gone into the facts
under its writ jurisdiction.
46.
Re
: Delay and Laches : - Delay and laches is one of the factors that requires to
be borne in mind by the High Courts when they exercise their discretionary power
under Article 226 of the Constitution of India. In an appropriate case, the
High Court may refuse to invoke its 31extraordinary powers if there is such negligence
or omission on the part of the applicant to assert his rights taken in
conjunction with the lapse of time and other circumstances. The Privy Council
in Lindsay Petroleum Company Vs. Prosper Armstrong Hurd etc; (1874) 5 PC 221 at
page 229, which was approved by this Court in Moon Mills Ltd. Vs. Industrial
Courts AIR 1967 SC 1450 and Maharashtra State Road Transport Corporation Vs. Balwant
Regular Motor Service AIR 1969 SC 329, has stated :-
"Now the
doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine.
Where it would be practically unjust to give a remedy, either because the party
has, by his conduct, done that which might fairly be regarded as equivalent to
a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving
that remedy, yet put the other party in a situation in which it would not be reasonable
to place him if the remedy were afterwards to be asserted in either of these cases,
lapse of time and delay are most material. But in every case, if an argument
against relief, which otherwise would be just, is founded upon mere delay, that
delay of course not amounting to a bar by any statute of limitations, the
validity of that defence must be tried upon principles substantially equitable.
Two circumstances, always important in such cases, are, the length of the delay
and the nature of the acts done during the interval, which might affect either
party and cause a balance of justice or injustice in taking the one course or the
other, so far as relates to the remedy."
47.
In
Amrit Lal Berry Vs. CCE (1975) 4 SCC 714, this Court took the view that "if
a petitioner has been so remiss or negligent as to approach the Court for relief
after an inordinate and unexplained delay, he certainly jeopardises his claims as
it may become inequitable, with circumstances altered by lapse of time and other
facts, to enforce, a fundamental right to the detriment of similar claims of
innocent third persons."
48.
In
State of Maharashtra Vs. Digambar (1995) 4 SCC 683, this Court observed that
"unless the facts and circumstances of the case at hand clearly justify the
laches or undue delay, writ petitioners are not entitled to any relief against
any body including the State."
49.
In
Shiv Dass Vs. Union of India (2007) 9 SCC 274, this Court opined that "the
High Court does not ordinarily permit a belated resort to the extraordinary
remedy because it is likely to cause confusion and public inconvenience and
bring in its train new injustices, and if writ jurisdiction is exercised after unreasonable
delay, it may have the effect of inflicting not only hardship and inconvenience
but also injustice on third parties. It was pointed out that when writ jurisdiction
is invoked, unexplained delay coupled with the creation of 33 third party
rights in the meantime is an important factor which also weighs with the High Court
in deciding whether or not to exercise such jurisdiction."
50.
In
City and Industrial Development Corporation Vs. Dosu Aardeshir Bhinandiwala and
others (supra), this court held :- "It is well settled and needs no
restatement at our hands that under Article 226 of the Constitution, the jurisdiction
of a High Court to issue appropriate writs particularly a writ of Mandamus is highly
discretionary. The relief cannot be claimed as of right. One of the grounds for
refusing relief is that the person approaching the High Court is guilty of unexplained
delay and the laches. Inordinate delay in moving the court for a Writ is an adequate
ground for refusing a Writ. The principle is that courts exercising public law jurisdiction
do not encourage agitation of stale claims and exhuming matters where the
rights of third parties may have accrued in the interregnum."
51.
Shri
Ranjit Kumar, learned senior counsel for contesting respondents, invites our
attention to the observations made by this court in the case of State of M.P.
and others Vs. Nandlal Jaiswal and others (1986) 4 SCC 566, wherein this court
has stated "this rule of laches or delay is not a rigid rule which can be
cast in a straitjacket formula, for there may be cases where despite delay and
creation of third party rights the High Court may still in the exercise of its
discretion interfere and 34 grant relief to the petitioner. But, such cases where
the demand of justice is so compelling that the High Court would be inclined to
interfere inspite of delay or creation of third party rights would by their very
nature be few and for between. Ultimately it would be a matter within the discretion
of the Court ex-hypotheses every discretion must be exercised fairly and justly
so as to promote justice and not to defeat it."
52.
Reliance
is also placed on the observations made by this Court in M/s Dehri Rohtas Light
Railway Company Ltd. Vs. District Board, Bhojpur and others (1992) 2 SCC 598,
wherein it is observed : "The rule which says that the Court may not
enquire into belated and stale claim is not a rule of law but a rule of practice
based on sound and proper exercise of discretion. Each case must depend upon
its own facts. It will all depend on what the breach of the fundamental right and
the remedy claimed are and how delay arose. The principle on which the relief to
the party on the grounds of laches or delay is denied is that the rights which have
accrued to others by reason of the delay in filing the petition should not be allowed
to be disturbed unless there is a reasonable explanation for the delay.
The real test to determine
delay in such cases is that the petitioner should come to the writ court before
a parallel right is created and that the lapse of time is not attributable to
any laches or negligence. The test is not to physical running of time. Where the
circumstances justifying the conduct exists, the illegality which is manifest cannot
be sustained on the sole ground of laches."
53.
The
relevant considerations, in determining whether delay or laches should be put
against a person who approaches the writ court under Article 226 of the Constitution
is now well settled. They are:
i.
there
is no inviolable rule of law that whenever there is a delay, the court must necessarily
refuse to entertain the petition; it is a rule of practice based on sound and proper
exercise of discretion, and each case must be dealt with on its own facts.
ii.
The
principle on which the court refuses relief on the ground of laches or delay is
that the rights accrued to others by the delay in filing the petition should
not be disturbed, unless there is a reasonable explanation for the delay, because
court should not harm innocent parties if their rights had emerged by the delay
on the part of the petitioners.
iii.
The
satisfactory way of explaining delay in making an application under Article 226
is for the petitioner to show that he had been seeking relief elsewhere in a
manner provided by law. If he runs after a remedy not provided in the Statute
or the statutory rules, it is not desirable for the High Court to condone the
delay. It is immaterial what the petitioner chooses to believe in regard to the
remedy.
iv.
No
hard and fast rule, can be laid down in this regard. Every case shall have to
be decided 36 on its own facts.
v.
That
representations would not be adequate explanation to take care of the delay.
54.
Let
us now advert to the contentions canvassed by learned counsel in this regard. Mr.
Mukund, learned counsel for the appellants, submitted that the contesting respondent
during the period 1951 till 1955, had not taken any steps for redressal of
their grievance, if any, including challenging the notification issued by the competent
authority under the Evacuee Property Act dated 11.12.1952. He further submits that
from 1955 till 1959, the contesting respondents were making representations before
forums which could not have given them reliefs. In spite of the counsel of the
authorities that they should file either appeal or revision against the notification
issued under the Evacuee Property Act, they did not resort to those remedies.
It is further
contended that from the period 1959 till 1966, they did not choose to approach
any authorities nor took any judicial action. The learned counsel submits that for
the first time, they approached the High Court by filing the writ petition some
time in the year 1966, inter-alia, claiming the relief of certiorari to quash
the action of the authorities for auction of the acquired lands under the Displaced
Persons Act for grant of Ek saala lease, but, at the time of hearing of 37the petition,
they advanced a new case by contending that an appropriate writ requires to be
issued to quash the notification issued under the Evacuee Property Act. It is
further submitted that the High Court refused to grant the relief on the ground
of delay and laches in approaching the court for quashing the notification of
the year 1952 and further on the ground that the writ petitioner has not
availed the alternate remedies provided under the Evacuee Property Act.
The learned counsel
submits by this order that the writ court has given a finding that at a belated
stage, the writ petitioner cannot challenge the notification issued on
11.12.1952 under the provisions of the Evacuee Property Act. The learned
counsel further submits that after disposal of the writ petition, the
contesting respondents had approached forums which could not have entertained
their claim nor could have granted any relief. It is further submitted even
assuming that the respondents were knocking at the doors of the wrong forum,
the same should not be held against them, may not come to their aid, since the
third party rights are created by allotment of the Evacuee Property to the
Displaced Persons under the Displaced Persons Act.
He further submits that
though the writ petition filed by one of the contesting respondents was dismissed
by the writ court, the other contesting 38respondents suppressing the filing of
the writ petition and its dismissal, had filed a revision petition under Section
27 of the Evacuee Property Act before the Deputy Custodian General, New Delhi sometime
in the year 1967 inter-alia questioning the Notification dated 11.12.1952 declaring
the `disputed lands' as Evacuee Property.
Though they succeeded
before that authority, the same was short lived and the said order was revised by
the Chief Settlement Commissioner at the instance of the allottees by his order
dated 11.05.1983. The learned counsel further submits that instead of
questioning the said order before a proper forum, they approached the State Government
to revise the order by the Chief Settlement Commissioner and when the revision petition
was returned, they approached the High Court by filing a writ petition to
direct the State Government to invoke its power of `Suo-Moto' revision, which
came to be rejected on 26.07.1988.
Therefore, the
learned counsel submits that the time spent from 1983 till 1988 cannot be considered
to be satisfactory explanation since they were seeking reliefs not in a manner
provided by the law. The learned counsel submits that after about two years of the
dismissal of the writ petition, they filed yet another Writ Petition No.17722
of 1990, inter-alia, seeking initially a 39 direction to respondent No.3 to
conduct an enquiry into the question of title of disputed lands and also the
correctness of the declaration of the said property as evacuee property, and again
after almost seven years of filing of the writ petition, an amendment was sought
for quashing the Notification dated 11.12.1952. Therefore, the High Court ought
not have entertained the writ petition in view of the inordinate and
unexplained delay.
55.
Shri.
Ranjit Kumar contends that the contesting respondents were and are in
continuous physical possession of the lands and it is only when their
possession was threatened in the year 1966 by the Tahsildar for auctioning the
lands to grant Ek saala lease, they had approached the High Court and prior to
that, they were making representations before the authorities for redressal of their
grievance. The learned senior counsel submits that the appellants have not placed
any material before this Court that the contesting respondents were dispossessed
from their lands and an inference should be drawn in favour of the respondents.
He also submits that though Sanads were given to the allottees, they were never
put in possession of the property.
He states that even
the Sanads so granted were cancelled on a later date since the allottee could
not take possession of lands. It is also contended 40that if there is any
delay, it could only be after the Chief Settlement Commissioner had allowed the
revision petition filed by the allottees by setting aside the earlier order
passed by the Deputy Custodian in the year 1979. He further submits that the contesting
respondent thereafter had approached the State Government to initiate its suo-moto
revisional powers to revise the order passed by the Chief Settlement Commissioner
and since that was not done, they immediately filed a writ petition for
appropriate direction and the said writ petition was disposed of only in the
year 1988 and immediately thereafter, they had approached the High Court by filing
a writ petition for appropriate reliefs.
Therefore, he submits
that firstly, there was no delay or laches on the part of the contesting
respondents in approaching the authorities for redressal of their grievances,
secondly, assuming there is some delay, the same has been satisfactorily
explained and lastly, when there was manifest illegality in the proceedings of
the authorities both under the Evacuee Property Act and the Displaced Persons Act,
the same has been corrected by the learned Division Bench of the High Court and
this Court need not disturb the finding of the High Court in exercise of its jurisdiction
under Article 136 of the Constitution.
56.
Since
this issue requires to be answered in the light of the pleadings of the
contesting respondents in the writ petition filed by them before the High
Court, it is desirable firstly to notice what was their explanation pleaded in
approaching the writ court nearly after 28 years from the date of the
notification issued under the Evacuee Property Act. We have carefully scanned
through the pleadings in the writ petition and also the application filed for
amendment nearly after eight years from the date of filing of the writ petition.
There is no explanation, much less satisfactory explanation except a very
casual statement in para 4 of the petition. Therein, it is said: "4. That in
the meanwhile, there have been various proceedings whereunder the petitioners repeatedly
knocking the doors of various authorities challenging the very correctness of the
proceedings treating the petitioners' lands as evacuee. However, no attempt was
made to go to root of the case and to find out, if really said Rahim Bux or his
family at time had any title, right or interest to be declared as evacuee. For
no fault, the petitioners are sought to be deprived of their legitimate rights,
without any justification or valid reason."
57.
In
the counter affidavit filed by respondent No.13 (Shankar Co- operative Society),
they had specifically contended "that the writ petition is time barred and
on the ground of latches, the writ petition is bound to be dismissed. The
petitioners are seeking quashing the order 42 or notification of the year 1952 and
an order of the quasi-judicial authority of the year 1983 and of 1990 [Para
2(d)]. In para 23 of the counter affidavit, they had also asserted, "that the
petitioners have referred to various representations alleged to have been made
to the respondent authorities from time to time on various dates reflected in the
petition. They did not choose to file copies of all representations. On the
other hand, it is reliably learnt that it is falsely made and such representations
are filed."
58.
The
High Court, in the course of its judgment and order, notices the specific
allegations made by the respondents in their counter affidavit filed and the
contention of the learned counsel in regard to delay and laches on the part of
the petitioners in approaching the Court.
59.
While
answering the aforesaid stand of the respondents in the writ petition, the
Division Bench of the High Court refers to several orders passed by the authorities
and then observes that "from what is narrated above, the petitioners cannot
be found fault with for any inaction or lapse and they had been waging tireless
legal battle since last 45 years. Further, they did not leave any chance in the
litigation." Beyond this, the High Court has not stated anything with 43 regard
to the explanation offered by the petitioner in approaching the Court, even
according to them, nearly after 45 years. The High Court has not recorded any
finding whatsoever and ignored such a plea of far-reaching consequence.
60.
In
the present case, the respondents in the writ petition had raised a specific
plea of delay, as a bar to grant relief to the petitioners. In our view, it was
perhaps necessary for the Court to have specifically dealt with this issue. It is
now well settled that a person who seeks the intervention of the High Court under
Article 226, should give a satisfactory explanation of his failure to assert
his claim at an earlier date. The excuse for procrastination should find a
place in the petition filed before the Court and the facts relied upon by him
should be set out clearly in the body of the petition. An excuse that he was agitating
his claims before authorities by making repeated representations would not be satisfactory
explanation for condoning the inordinate delay in approaching the Court. If a
litigant runs after a remedy not provided in the Statute or the statutory
rules, it cannot be a satisfactory explanation for condoning the delay in approaching
the Court.
61.
On
this issue, we have heard the learned counsel for the parties in great detail, since
the immoveable property rights of the parties are involved. In our considered
view, there is no explanation, much less satisfactory explanation offered by
the respondents in approaching the writ court after an inordinate delay of
nearly 15 years from the date of the notification issued under the Evacuee
Property Act. For the delay from 1952 to 1955, the contesting respondents would
only submit that they were not aware of the notification issued under the Evacuee
Property Act, since no notice was served on them, though a public notice was issued
by the authority under the Evacuee Property Act. While explaining the delay of
nearly eleven years from 1955 to 1966, they contend that they were in possession
of the property and they were making representations before the authorities
under the Evacuee Property Act for redressal of their grievance.
The delay after the orders
were passed by the Settlement Commissioner in the year 1983 till the writ
petition was filed in the year 1990, it is explained that they had moved the
State Government to suo-moto revise the order passed by the Chief Settlement Commissioner
and since the State Government returned their request, they had approached the High
Court to issue directions to the State Government to issue appropriate directions.
In our considered view, at every stage, there was inordinate delay in approaching
the authorities for redressal of their grievance. As rightly contended by Shri.
Mukund, learned counsel, even when they approached the authorities, they were
claiming wrong reliefs or incomplete reliefs. Even when they filed the writ
petition in the year 1990, they did not choose to question the correctness of
the notification issued under the Evacuee Property Act but was questioned by way
of filing an amendment application in the year 1998.
There is some merit
in the submission made by learned counsel for the contesting respondents that the
petitioners in their pleadings before the writ court, had not even offered any
explanation, much less satisfactory explanation, in approaching the court nearly
after three decades from the date of notification issued under the Evacuee
Property Act. It is now well settled that the power of the High Court under Article
226 of the Constitution to issue an appropriate writ, order or direction is
discretionary. One of the grounds to refuse relief by a writ court is that the petitioner
is guilty of delay and laches. Inordinate and unexplained delay in approaching
the court in a writ is indeed an adequate ground for refusing to exercise discretion
in favour of the petitioners therein. The unexplained delay on the part of 46 the
petitioner in approaching the High Court for redressal of their grievances under
Article 226 of the Constitution was sufficient to justify rejection of the petition.
The other factor the High
Court should have taken into consideration that during the period of delay, interest
has accrued in favour of the third party and the condonatoin of unexplained
delay would affect the rights of third parties. We are also of the view that reliance
placed by Shri Ranjit Kumar on certain observations made by this Court would
not assist him in the facts and circumstances of this case. While concluding on
this issue, it would be useful to refer the observations made by the Court in
the case of Municipal Council Vs. Shaha Hyder Baig (2002) 2 SCC 48, wherein it is
stated that `delay defeats equity and that the discretionary relief of condonation
can be had, provided one has not given by his conduct, given a go by to his
rights'.
62.
Re:
Effect of the judgment and order of the High Court in W.P. No. 1051 of 1966:- While
narrating the facts, we have referred to the judgment and order of the High Court
in Writ Petition No. 1051 of 1966 dated 14.06.1968. The relief that was sought
for by the petitioner therein 47was to issue a writ or direction restraining the
respondents from auctioning the lands in pursuance of the letter of Tahsildar,
Medchal dated 29.6.1966.
63.
However,
the High Court while dismissing the Writ Petition, specifically has observed that
what was challenged by the petitioner in the Writ Petition was the order passed
by the Deputy Custodian of Evacuee property under Section 7 of the Evacuee
Property Act declaring certain properties as evacuee properties. The Court
specifically notices the notification dated 11.12.1952 issued by the
authorities under the Evacuee Property Act and observes that the petitioner had
not availed the remedy provided under Section 24 of the Act, by way of an
appeal. In conclusion, it observes that petitioner without preferring an appeal
has approached the Court at a belated stage with a petition for issue of a
writ.
Accordingly, the High
Court had dismissed the petition with costs. It is not in dispute nor can it be
disputed that the said judgment and order has attained finality. Sri Mukund, learned
counsel, submits that though petitioner had questioned the letter of the Tahsildar,
Medchal for auctioning the lands for grant of Ek saala lease, at the time of the
hearing of the petition, there is possibility of the learned counsel for the
petitioner to have questioned the notification issued under the Evacuee Property
48 Act. Since by then, the petitioner had the knowledge of the notification
issued under the Act, otherwise there was no reason for the High Court to have specifically
noticed the notification dated 11.12.1952 issued under Section 7 of the Evacuee
Property Act.
However, Sri Ranjit
Kumar, learned Senior counsel for the contesting respondents to get over this
legal hurdle, submits that the writ petition was filed by Mandal Anjaiah,who
was one of the legal representatives of late Mandal Buchaiah and the judgment and
order passed by the Writ court cannot be put against the other legal
representatives of the Mandal Buchaiah. The learned senior counsel also submits
that after disposal of the writ petition, the other heirs of late Mandal
Buchaiah had preferred a revision before the Deputy Custodian General, New Delhi
under Section 27 of the Evacuee Property Act and the same was not only entertained
but necessary relief was also granted to him. Therefore, the Judgment and order
of the High Court would not affect the rights of the other legal heirs of late
Mandal Buchaiah.
64.
Before
we consider the contentions of learned counsel, let us first notice the settled
legal position in matters like the present case.
65.
In
Shakur Basti Shamshan Bhumi Sudhar Samiti v. Lt. Governor, NCT of Delhi (2007)
13 SCC 53, the order passed by the High Court for closure of cremation ground,
in conformity with zonal development plan, had attained finality. This Court
has held that any subsequent order passed in ignorance of the order of the High
Court which has attained finality is nullity. It was further observed: "40.
The learned Subordinate Judge has also passed an order in a suit filed by one Balvant
Rai in 1991. What was the nature of the decree passed by the Subordinate Judge has
not been disclosed. The only contention raised in the list of dates is that the
same was a collusive suit. With whom, the said Balvant Rai colluded or what was
the nature and purport of the decree had not been disclosed. Some orders appear
to have been passed also by the Additional District Judge. We do not know
whether the Additional District Judge has passed the order in the same
proceeding or in some other proceedings. If the judgments directing user of the
land in conformity with the zonal development plan and further directing that a
cremation ground should not be allowed to operate become final, an order passed
in ignorance thereof would be a nullity."[Emphasis supplied by us]
66.
Once
the order of the High Court has attained finality, then it is not open for the
lower courts or even for the High Court to ignore the said Order. In A.P. Housing
Board v. Mohd. Sadatullah, (2007) 6 SCC 566, it was held: 50 "34. Though
in the appeal filed by the A.P. Housing Board in the present proceedings, it
was asserted that the decision of the High Court in Writ Petition No. 4194 of
1988 was not final as appeal was filed against the said decision, at the time
of hearing of the appeal, it was admitted that no such appeal was filed against
the judgment of the High Court and the decision had attained finality. The consequence
of the decision of the High Court in the circumstances is that in respect of two
acres of land, proceedings under the Land Acquisition Act were held bad, award
nullity and the landowner continued to remain owner of the property with all
rights, title and interest therein. 41. In our opinion, the learned counsel for
the original petitioner landowners is right in contending that when the acquisition
proceedings and award in respect of two acres of land was held bad and nullity by
the High Court in previous proceedings, it was not open to the Special Court or
the High Court to ignore the said order."
67.
The
Finality of Order by the High Court has been considered and upheld by this
Court in Hindustan Construction Co. Ltd. and Anr. v. Gopal Krishna Sengupta and
Ors., (2003) 11 SCC 210. This Court has held: "25. The question still remains
whether, on facts of this case, the direction given in the Order dated 19th
October, 2000 can be maintained. In the application there was no prayer to examine
Pritika Prabhudesai. The prayer was to quash the proceedings and start trail afresh.
There is no provision in law which permits this. Thus the application could not
be allowed. Undoubtedly the High Court has proceeded 51 on the footing that this
evidence is essential and necessary. Section 311 of the Criminal Procedure Code
permits taking of evidence at any stage. The High Court undoubtedly felt that
it was in the interest of all parties that necessary evidence be recorded at this
stage itself. But the fact remains that the application for this very relief has
been rejected on 6 th Novemb er, 1997. No appeal or revision was filed against that
order. The Order dated 6th Novemb er, 1997 has therefore become final. Once such
a relief has been refused and the refusal has attained finality, judicial
propriety requires that it not be allowed to be reopened. The High Court was
obviously not informed of the Order dated 6th Nove mber, 1997. Thus the High Court
cannot be blamed. However as that Order has been brought to notice of this
Court we cannot ignore it."
68.
In
Food Corporation of India v. S.N. Nagarkar, (2002) 2 SCC 475, this Court has
held: "15. ... In the instant case, the writ petition filed by the respondent
was allowed by judgment and order dated 6thMay, 1994 passed in Civil Writ Petition
No. 4983 or 1993. That order attained finality as it was not appealed from. In execution
proceedings, the appellant cannot go beyond the order passed by the Court in
the writ petition and, therefore, what has to be considered is whether the High
Court was right in holding that in terms of the order of the Court dated 6thMay,
1994 passed in Civil Writ Petition No. 4983 of 1993, the respondent is entitled
to the arrears of pay and allowances with effect from the date of promotions. If
the answer is in the affirmative, the question whether such relief ought to have
been granted cannot be agitated in execution proceeding. We find considerable
force in the submission urged on 52 behalf of the respondent. In these
proceedings it is not permissible to go beyond the order of the learned Judge dated
6th M ay, 1994 passed in Civil Writ Petition No. 4983 of 1993. The execution application
giving rise to the instant appeal was filed for implementing the order dated
6th May, 1994 and in such proceeding, it was not open to the appellant either
to contend that the judgment and order dated 6th M ay, 1994 was erroneous or that
it required modification. The judgment and order aforesaid having attained
finality, has to be implemented without questioning its correctness. The appellant
therefore, cannot be permitted to contend in these proceedings that the judgment
and order dated 6thMay, 1994 was erroneous in as much as it directed the appellant
to pay to the respondent arrears of salary with effect from the dates of promotion,
and not from the dates the respondent actually joined the promotional
posts."
69.
In
Oriental Bank of Commerce v. Sunder Lal Jain and Anr. (2008) 2 SCC 280, the
respondents had availed credit facility to the tune of `20 Lacs and defaulted
in repaying the same to the Bank. The Bank declared their account as Non Performing
Asset and initiated recovery proceedings against the respondents before the
DRT, which has issued a recovery certificate in favour of the Bank. However, against
this, respondents did not prefer any appeal, instead filed writ petition before
the High Court. The High Court has stayed the execution proceedings and directed
the bank to consider the respondent's case in terms of RBI guidelines. Aggrieved
by this, 53 appellant Bank approached this Court against the order of the High Court.
This Court observed
that when a decree passed by the DRT had attained finality, then the
proceedings for execution of decree cannot be stayed by High Court in an
independent writ petition. This Court further held: "13. The High Court,
therefore, erred in issuing a writ of mandamus directing the appellant bank to
declare the respondents' account as NPA from 31st March, 2000 and to apply the
RBI Guidelines to their case and communicate the outstandings which shall be recoverable
by quarterly instalments over a period of two years. The later part of the order
passed by the High Court wherein a direction has been issued to stay the recovery
proceedings and the recovery certificate issued against the respondents has been
cancelled is also wholly illegal as the decree passed by the DRT had attained
finality and proceedings for execution of decree could not be stayed in an independent
writ petition when the respondents had not chosen to assail the decree by filing
an appeal, which is a statutory remedy provided under Section 20 of Recovery of
Debts Due to Banks and Financial Institutions Act, 1993."
70.
Doctrine
of Amity and Comity requires the Court of Concurrent Jurisdiction to pass similar
orders. In India Household and Healthcare Ltd. v. LG Household and Healthcare
Ltd., 2007 (5) SCC 510, this Court has held: 54 "The doctrine of comity or
amity required a court not to pass and order which would be in conflict with another
order passed by a competent court of law." It was further held: "17. This
aspect of the matter has been considered in A Treatise on the Law Governing Injunctions
by Spelling and Lewis wherein it is stated: Section 8. Conflict and loss of
jurisdiction. --Where a court having general jurisdiction and having acquired jurisdiction
of the subject- matter has issued an injunction, a court of concurrent jurisdiction
will usually refuse to interfere by issuance of a second injunction. There is no
established rule of exclusion which would deprive a court of jurisdiction to
issue an injunction because of the issuance of an injunction between the same parties
appertaining to the same subject-matter, but there is what may properly be termed
a judicial comity on the subject. And even where it is a case of one court
having refused to grant an injunction, while such refusal does not exclude another
coordinate court or Judge from jurisdiction, yet the granting of the injunction
by a second Judge may lead to complications and retaliatory action...."
71.
The
issue before us is whether the judgment and order passed by the High Court in the
writ petition filed by one of the legal representatives having attained finality
in so far as the notification dated 11.12.1952 issued under the Evacuee
Property Act, could have been re-agitated by the other legal heirs of late
Mandal Buchaiah and whether the authorities under the Evacuee Property Act could
have 55 gone beyond the Judgment and order passed by the Writ Court and whether
the High Court was justified in the subsequent Writ Petition filed to have
re-agitated the issue which had attained finality.
72.
In
the Writ Petition filed by Mandal Anjaiah, the Regional Settlement Commissioner
and custodian of Evacuee Property, Bombay, was arrayed as one of the
respondents. That only means, he was fully aware of the Judgment and order
passed by the Writ Court. In the revision petition filed by the other legal
representatives of late Mandal Buchaiah, he was also arrayed as one of the respondents.
However, a perusal of the order passed by Deputy Custodian General does not clearly
indicate whether it was brought to his notice the Judgment and order passed by
the High Court, yet again, in the order by the Collector-cum-Deputy Custodian
dated 28.5.1979, there is no reference to the Judgment and order passed by the High
Court. However, in the order passed by Chief Settlement Commissioner of Evacuee
Property, there is reference to the judgment of the High Court.
The said authority while
setting aside the order passed by Collector-cum-Deputy Custodian as nullity,
the reliance is not placed on the judgment and order passed by the High Court. In
the subsequent Writ Petition filed, the respondents therein, in their 56 Counter
Affidavit had specifically contended that the notification dated 11.12.1952 has
become final in view of the judgment and order passed by the High Court in Writ
Petition No. 1051 of 1966 as also in Writ petition 7517 of 1983. The Division
Bench of the High Court while dealing with this aspect, has observed in its order
"it is not correct to read the Judgment dated 14.6.1968 rendered in W.P.
No. 1051 of 1966 that this Court had negatived the rights of the petitioners. A
sentence here and there in a Judgment cannot be picked up in construing it. A Judgment
has to be construed on reading and understanding as a whole and if so understood,
the judgment in W.P. 1051 of 1966 is to the effect that in the writ petition,
the rights of the parties cannot be adjudicated and more so in view of the fact
that alternative remedy of appeal is available under the Act. By that, it
cannot be assumed that this Court had upheld the notification issued under Section
7 of the Act".
73.
We
do not agree with the reasoning and conclusion reached by the Division Bench of
the High Court. We do not think that the decision of the court has been
correctly read. However, we do agree with the learned Judges that the Judgment
should be read as a whole and understood in the context and circumstances of
the facts of that 57 case. In this context, it is worthwhile to recall the
observations made by this court in the case of U.P. State Road Transport
Corporation v. Asstt. Commissioner of Police (Traffic) Delhi [2009(3) SCC 634],
wherein it is observed that "a decision is an authority, it is trite for which
it decides and not what can logically be deduced therefrom. This wholesome principle
is equally applicable in the matter of construction of a judgment. A judgment
is not to be construed as a Statute. It must be construed upon reading the same
as a whole. For the said purpose, the attending circumstances may also be taken
into consideration."
74.
At
the cost of repetition, we once again intend to notice the judgment and order passed
by the High Court in W.P. No. 1051 of 1966. The Court, while narrating the
facts, specifically observes that what is challenged before it by the petitioner
was the notification dated 11.12.1952 issued under Section 7 of the Evacuee
Property Act declaring certain properties as evacuee properties. While
dismissing the writ petition, the Court has observed that petitioner has failed
to avail the alternate remedy of appeal provided under the Act and at the belated
stage, he cannot question the correctness or otherwise of the notification
dated 11.12.1952. Therefore, it may not be correct to say that the court had
rejected the writ petition only on the ground that the petitioner without availing
the alternate remedy provided under the Act, could not have filed the writ petition.
We hold that the writ
petition was dismissed by the High Court not only on the ground that the
petitioner had failed to avail the remedy under the Act, but also on the ground
that the petitioner could not have questioned the notification dated 11.12.1952
at a belated stage. Therefore, in our view, the approach of the Division Bench
of the High Court was not justified in entertaining a writ petition on the very
issue, which had attained finality in an earlier proceeding. This view has
nothing to do with the Principle of res judicata nor are we saying Principles
of res judicata would apply in the facts and circumstances of this case. We are
only holding that when a competent court refuses to entertain a challenge made to
a notification issued on 11.12.1952 in a writ petition filed in the year 1966, the
High Court could not have entertained the writ petition on the same cause of
action at a belated stage in a writ petition filed in the year 1990.
The course adopted by
the High Court not only leads to confusion but also leads to inconvenience. We
also hold that the Judgment and order of the High Court was binding on the
authorities under the Evacuee Property Act 59 and, therefore, they could not have
reagitated the correctness or otherwise of the notification dated 11.12.1952
issued under Section 7 of the Evacuee Property Act.
75.
Shri.
Ranjit Kumar, learned senior counsel, contends that the writ petition was filed
by one of the co-owners of late Mandal Buchaiah and judgment and order passed would
not bind the other parties. We cannot agree. It is a settled law that no
co-owner has a definite right, title and interest in any particular item or portion
thereof. On the other hand, he has right, title and interest in every part and
parcel of the joint property or coparcenery under Hindu Law by all the
coparceners. Our conclusion is fortified by the view expressed by this court in
A. Viswanath Pillai and Others vs. The Special Tahsildar for Land Acquisition
No.IV and Others (1991) 4 SCC 17), in which this Court observed: "It is
settled law that one of the co-owners can file a suit and recover the property against
strangers and the decree would enure to all the co-owners.
It is equally settled
law that no co-owner has a definite right, title and interest in any particular
item or a portion thereof. On the other hand he has right, title and interest in
every part and parcel of the joint property or coparcenery under Hindu law by
all the coparceners. In Kanta Goel v. B.P. Pathak (1977) 2 SCC 814, this Court
upheld an application by one of the co-owners for eviction of a tenant for personal
occupation of the co-owners as being maintainable. 60 The same view was
reiterated in Sri Ram Pasricha v. Jagannath (1976) 4 SCC 184 and Pal Singh v.
Sunder Singh..." "....A co-owner is as much an owner of the entire property
as a sole owner of the property. It is not correct to say that a co-owner's
property was not its own. He owns several parts of the composite property alongwith
others and it cannot be said that he is only a part owner or a fractional owner
in the property. That position will undergo a change only when partition takes place
and division was effected by metes and bounds. Therefore, a co-owner of the property
is an owner of the property acquired but entitled to receive compensation pro
rata."
76.
Re.
Constructive Res judicata:- Learned counsel Shri. Mukund submits that the
respondents herein for the first time in the writ petition filed in the year 1990
had raised a contention that the procedure prescribed under the Evacuee Property
Act and the rules framed thereunder were not followed before notifying the lands
in question as evacuee property. Though this ground was available, the same was
not raised. Therefore, it is contended that a ground, though opened to be
raised, but not raised in earlier writ petition, cannot be allowed to be raised
in a subsequent writ petition. Sri Ranjit Kumar, learned senior counsel, would contend
that the judgment and order in W.P. No. 1051 of 1966 was not dismissed on
merits but only on the ground of delay and laches and therefore, 61 principles
of constructive res judicata would not apply. Our attention is invited to the decision
of this court in the case of Daya Rao Vs. State of U.P. (1962) 1 SCR 574 and in
the case of Hosunak Singh Vs. Union of India (1979) 3 SCC 135.
77.
In
our view, this issue need not detain us for long. This Court in the case of
Devilal Modi, Proprietor, M/s Daluram Pannalal Modi v. Sales Tax officer Ratlam
& Ors. [AIR 1965 SC 1150], has observed that "the rule of constructive
res judicata that of a plea could have been taken by a party in a proceeding
between him and his opponent, he would not be permitted to take that plea
against the same party in a subsequent proceeding, which is based on the same
cause of action, is founded on the same considerations of public policy. If the
doctrine of constructive res judicata is not applied to writ proceedings, it would
be open to the party to take proceedings one after another and urge new grounds
every time, and that plainly is inconsistent with considerations of Public
policy."
78.
In
the present case, it is admitted fact that when the contesting respondents filed
W.P. No. 1051 of 1966, the ground of non- compliance of statutory provision was
very much available to them, 62 but for the reasons best known to them, they
did not raise it as one of the grounds while challenging the notification dated
11.12.1952 issued under the Evacuee Property Act. In the subsequent writ petition
filed in the year 1990, initially, they had not questioned the legality of the
notification, but raised it by filing an application, which is no doubt true,
allowed by the High Court. In our view, the High Court was not justified in permitting
the petitioners therein to raise that ground and answer the same, since the same
is hit by the principles analogous to constructive res judicata.
79.
Re:
Whether the High Court could have gone into the facts under its writ jurisdiction:-
The learned counsel Shri Mukund contends that the High Court in exercise of its
power under Article 226 of the Constitution of India ought not have gone into
the disputed facts and render a finding on those facts. The learned counsel
invites our attention to the observations made by this Court in Surya Dev Rai vs.
Ramchander Rai and Others (2003) 6 SCC 675, Ranjit Singh vs. Ravi Prakash (2004)
3 SCC 682 and Karnataka State Industrial Investment and Development Corporation
Ltd. vs. Cavalet India Ltd. and Others (2005) 4 SCC 456. Per contra, Shri
Ranjit Kumar, learned senior counsel submits that since there is a bar for filing
civil suit 63 under Section 28 and Section 48 of the Evacuee Property Act and Section
36 of the Displaced Persons Act, the High Court necessarily has to go into
disputed question of facts. In aid of his submission, the learned senior
counsel has relied on the decisions of this Court in the case of State of
Orissa vs. Dr. Miss Binapani Dei and Ors. (1967) 2 SCR 625, Smt. Gunwant Kaur and
Ors. vs. Municipal Committee, Bhatinda and Ors. (1969) 3 SCC 769, Om Prakash Vs.
State of Haryana and others (1971) 3 SCC 792, Surya Dev Rai vs. Ram Chander Rai
and Ors. (2003) 6 SCC 675 and ABL International Ltd. and Anr. Vs. Export Credit
Guarantee Corporation of India Ltd. and Ors. (2004) 3 SCC 553.
80.
The
High Court in its writ jurisdiction, will not enquire into complicated questions
of fact. The High Court also does not sit in appeal over the decision of an
authority whose orders are challenged in the proceedings. The High Court can only
see whether the authority concerned has acted with or without jurisdiction. The
High Court can also act when there is an error of law apparent on the face of
the record. The High Court can also interfere with such decision where there is
no legal evidence before the authority concerned, or where the decision of the
authority concerned is held to be perverse, 64 i.e., a decision which no
reasonable man could have arrived at on the basis of materials available on record.
Where an enquiry into complicated questions of fact is necessary before the right
of aggrieved party to obtain relief claimed may be determined, the court may,
in appropriate cases, decline to enter upon that enquiry, but the question is
always one of discretion and not of jurisdiction of the court which may, in a proper
case, enter upon a decision on questions of fact raised by the petitioner.
81.
Before
we advert to the settled legal position, we will notice the decisions on which
reliance is placed by the learned counsel for the parties.
82.
This
Court in Surya Devi Rai's case (supra), for parameters for the exercise of
jurisdiction, held as under :- "(3) Certiorari, under Article 226 of the Constitution,
is issued for correcting gross errors of jurisdiction, i.e., when a subordinate
court is found to have acted (i) without jurisdiction - by assuming jurisdiction
where there exists none, or (ii) in excess of its jurisdiction - by overstepping
or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard
of law or the rules or procedure or acting in violation of principles of
natural justice where there is no procedure specified, and thereby occasioning
failure of justice. 65 (4) Supervisory jurisdiction under Article 227 of the Constitution
is exercised for keeping the subordinate courts within the bounds of their jurisdiction.
When the subordinate Court has assumed a jurisdiction which it does not have or
has failed to exercise a jurisdiction which it does have or the jurisdiction though
available is being exercised by the Court in a manner not permitted by law and
failure of justice or grave injustice has occasioned thereby, the High Court
may step in to exercise its supervisory jurisdiction. (5) Be it a writ of certiorari
or the exercise of supervisory jurisdiction, none is available to correct mere errors
of fact or of law unless the following requirements are satisfied: (i) the
error is manifest and apparent on the face of the proceedings such as when it is
based on clear ignorance or utter disregard of the provisions of law, and (iii(
a grave injustice or gross failure of justice has occasioned thereby."
83.
In
Ranjeet Singh's case (supra), this Court, while explaining the jurisdiction of
the High Court in exercise of its power under Article 226 and 227 of the
Constitution, held :- "Feeling aggrieved by the judgment of the Appellate Court,
the respondent preferred a writ petition in the/High Court of Judicature at Allahabad
under Article 226 and alternatively under Article 227 of the Constitution. It was
heard by a learned Single Judge of the High Court. The High Court has set aside
the judgment of the Appellate Court and restored that of the Trial Court. A perusal
of the judgment of the High Court shows that the High Court has clearly exceeded
its 66 jurisdiction in setting aside the judgment of the Appellate Court.
Though not specifically stated, the phraseology employed by the High Court in its
judgment, goes to show that the High Court has exercised its certiorari jurisdiction
for correcting the judgment of the Appellate Court."
84.
In
Karnataka State Industrial Investment and Development Corporation Ltd. (supra),
while explaining the jurisdiction of the High Court in exercising its jurisdiction
under Article 226 of the Constitution, has stated :- "The High Court while
exercising its jurisdiction under Article 226 of the Constitution does not sit
as an appellate authority over the acts and deeds of the financial corporation
and seek to correct them. The Doctrine of fairness does not convert the writ courts
into appellate authorities over administrative authorities."
85.
Shri
Ranjit Kumar, per contra, has placed reliance on the observations made by this
Court in the case of State of Orissa Vs. Dr. (Miss) Binapani Dei and others
(1967) 2 SCR 625, has observed :- "Under Article 226 of the Constitution
the High Court is not precluded from entering upon a decision on questions of fact
raised by the petition. Where an enquiry into complicated questions of fact
arises in a petition under Article 226 of the Constitution before the right of an
aggrieved party to obtain relief 67 claimed may be determined, the High Court may
in appropriate cases decline to enter upon that enquiry and may refer the party
claiming relief to a suit. But the question is one of discretion and not of jurisdiction
of the Court."
86.
In
Smt. Gunwant Kaur and others Vs. Municipal Committee, Bhatinda and others
(1969) 3 SCC 769, this Court held as under :- "The High Court, however,
proceeded to dismiss the petition in limine. The High Court is not deprived of its
jurisdiction to entertain a petition under Article 226 merely because in
considering the petitioners right to relief questions of fact may fall to be
determined. In a petition under Article 226 the High Court has jurisdiction to try
issues both of fact and law. Exercise of the jurisdiction is, it is true,
discretionary, but the discretion must be exercised on sound judicial principles.
When the petition raises questions of fact of a complex nature, which may for their
determination require oral evidence to be taken, and on that account the High
Court is of the view that the dispute may not appropriately be tried in a writ petition,
the High Court may decline to try a petition."
87.
In
Om Prakash Vs. State of Haryana and others (1971) 3 SCC 792, this Court
observed :- "The two judgments referred to by the High Court proceeded on
the ground that the High Court would not in deciding a petition for a writ
under Article 226 of the Constitution enter upon disputed questions of fact. But
whether in the present case there are disputed questions of fact of such
complexity as would 68 render it inappropriate to try in hearing a writ petition
is a matter which has never been decided. There is no rule that the High Court
will not try issues of fact in a writ petition. In each case the court has to consider
whether the party seeking relief has an alternative remedy which is equally efficacious
by a suit, whether refusal to grant relief in a writ petition may amount to denying
relief, whether the claim is based substantially upon consideration of evidence
oral and documentary of a complicated nature and whether the case is otherwise
fit for trial in exercise of the jurisdiction to issue high prerogative
writs."
88.
In
ABL International Ltd. and another Vs. Export Credit Guarantee Corporation of
India Ltd. and others (2004) 3 SCC 553, this Court has held :- "Therefore,
it is clear from the above enunciation of law that merely because one of the parties
to the litigation raises a dispute in regard to the facts of the case, the court
entertaining such petition under Article 226 of the Constitution is not always
bound to relegate the parties to a suit. In the above case of Smt. Gunwant Kaur
(supra), this Court even went to the extent of holding that in a writ petition,
if facts required, even oral evidence can be taken. This clearly shows that in an
appropriate case, the writ court has the jurisdiction to entertain a writ
petition involving disputed questions of fact and there is no absolute bar for entertaining
a writ petition even if the same arises out of a contractual obligation and or involves
some disputed questions of fact."
89.
In
Custodian of Evacuee Property Punjab and others Vs. Jafran Begum (1967) 3 SCR
736, this Court held :- "It may be added that the only question to be decided
under s. 7 is whether the property is evacuee property or not and the
jurisdiction of the Custodian to decide this question does not depend upon any finding
on a collateral fact. Therefore there is no scope for the application of that
line of cases where it has been held that where the jurisdiction of a tribunal of
limited jurisdiction depends upon the first finding certain state of facts, it
cannot give itself jurisdiction on a wrong finding of that state of fact. Here
under s. 7 the Custodian has to decide whether certain property is or is not evacuee
property and his jurisdiction does not depend upon any collateral fact being decided
as a condition precedent to his assuming jurisdiction. In these circumstances,
s. 46 is a complete bar to the jurisdiction of civil or revenue courts in any
matter which can be decided under s. 7. This conclusion is reinforced by the provision
contained in s. 4(1) of the Act which provides that the Act overrides other
laws and would thus override s. 9 of the Code of Civil Procedure on a combined reading
of Sections 4, 28 and 46. But as we have said already, s. 46 or s. 28 cannot bar
the jurisdiction of the High Court Art. 226 of the Constitution, for that is a power
conferred on the High Court under the Constitution."
90.
We
are of the view that the High Court has not committed an error while
entertaining a writ petition filed under Article 226 and 227 of the Constitution,
wherein the proceedings under Section 7 of the Evacuee Property Act was
questioned. We say so for the reason that 70 under the Evacuee Property Act, there
is specific bar for the civil court to adjudicate on the issue whether certain
property is or is not evacuee property. This issue can be decided only by the custodian
under the Act. Any person aggrieved by the findings of the custodian can avail
the other remedies provided under the Act. The findings and the conclusion reached
by the authorities under the Act in an appropriate case can be questioned in a petition
filed under Article 226 of the Constitution even it involves disputed questions
of facts. This issue, in our view, is no more res integra in view of three
Judge Bench decision of this Court in Jafran Begum's case (supra).
91.
Re
: Whether the lands in question are evacuee property under Evacuee Property Act
: Shri Mukund, learned counsel for the appellants, submits that the disputed
lands belong to late Rahim Baksh Khan and after issuing notice to the sons of
late Rahim Baksh Khan and after following the procedure prescribed under the Evacuee
Property Act and the rules framed thereunder, the lands were notified as evacuee
property by issuing notification dated 11.12.1952. Learned counsel further submitted
that late Rahim Baksh Khan had the money decree against 71late Mandal Buchaiah and
in execution of the court decree, Rahim Baksh Khan became the owner of the
property and his name had been recorded in the Khatra Khatauni as owner of the
said lands. The entry so made in the revenue records was not questioned by anybody
including late Mandal Buchaiah during his lifetime. It is further submitted
that the records of the execution petition was not traceable since the matter
is 60 years old and they have also not been placed on record by the contesting
respondents.
Therefore, in view of
the entries made in the Revenue records, late Rahim Baksh Khan and his legal representatives
were in possession of the lands under dispute. It is also submitted that the contesting
respondents took the said lands on Ek saala lease from the Government in the
year 1952 to 1955 and only in the year 1956, they made representation for the redressal
of their grievance before the authorities under the Evacuee Property Act and since
those representations did not yield any result, they approached the High Court
only in the year 1966 only questioning the action of Tahsildar who had proposed
to auction of the lands for grant of Ek saala lease. However, Shri Ranjit Kumar
would submit that late Rahim Baksh Khan never became the owner of the lands since
he did not execute the money decree that he had 72obtained from a civil court.
The learned senior counsel
by placing reliance on various provisions of the Evacuee Property Act and the
rules framed thereunder, submits that since procedure prescribed under the
Evacuee Property Act is not followed, the authorities under the Act could not have
declared the disputed lands as evacuee property. It is submitted that the order
passed under Section 7 of the Evacuee Property Act is manifestly illegal and
the illegality cannot be perpetuated against the contesting respondents since
they are owners and in continuous possession of the property. The learned senior
counsel also submits that except the notification issued under Section 7 of the
Act, no other document such as order passed under the Act after notice to the
persons interested in the lands is produced by the State Government in whose custody
the records of the proceedings were available.
Therefore, Deputy
Custodian General was justified in setting aside the declaration made under Section
7 of the Evacuee Property Act which order has merged with the impuged judgment
and order of the High Court. However, learned counsel for the State of Andhra
Pradesh by referring to their counter affidavit filed in the writ petition
before the High Court submits that the authority under the Act before issuing notification
under Section 7 of the Evacuee Property 73 Act, the procedure prescribed therein
had been followed and this assertion had not been denied by the respondents by
filing their reply affidavit and since no denial of the factual assertion made
by the State Government, the only inference that can be drawn is that the
proper procedure prescribed under the Act had been followed before issuing the
notification under the Evacuee Property Act.
92.
Admittedly,
before the High Court, parties to the lis had not produced any records. Petitioners
therein claimed that they were not dispossessed from the lands in dispute
pursuant to any money decree by late Rahim Baksh Khan or his legal
representatives. It is the stand of the appellants and also the State
Government that the name of late Rahim Baksh Khan had been recorded in the
Khatra Khatauni and the authorities under the Evacuee Property Act after
issuing notices to the legal representatives of late Rahim Baksh Khan and also
the public notice, the notification under Section 7 of the Act was issued and gazetted.
Since the records are of the year 1952, neither the State Government nor the contesting
respondents could produce any records or documents in support of their claim. However,
based on the affidavits filed by the petitioner, the High Court proceeds to
hold that they were not dispossessed from their lands in accordance with law.
This reasoning of the
learned Judges is firstly difficult to comprehend and secondly, difficult to
accept. It is the specific case of the appellants, by placing reliance on the
revenue records, that the name of late Rahim Baksh Khan found a place in the
revenue records prior to issuance of the notification dated 11.12.1952 under the
Evacuee Property Act and, thereafter, the name of the custodian is shown as the
owner of the lands. The burden of proof was on the petitioners therein to prove
their title, right and interest in the property. It looks again very strange to
us that the High Court, in the absence of any records of the year 1952,
proceeds to determine that the official respondents had not followed the
mandatory requirement of the provisions of the Evacuee Property Act and rules framed
thereunder before declaring the disputed lands as evacuee property.
It also looks odd and
queer to us that the High Court, in the absence of any records of the civil court
and the executing court, proceeds to arrive at a definite finding that the sale
of property had not taken place. Pursuant to the money decree passed, the
executing court had not auctioned disputed lands and late Rahim Baksh Khan
became the owner of the lands, though it concedes that the above facts have to
be proved with reference to the records and there cannot be oral evidence 75 in
this regard. To say the least, it was highly inappropriate for the High Court
to have proceeded to determine whether any notice was issued to late Mandal Buchaiah
before notifying the property as evacuee property without there being any
material nor the documents and records by relying only on the procedure
prescribed under the Act and the rules thereunder, even after noticing that
both the parties have not produced any records, since the records are old and
not traceable. In view of the above, we are of the opinion, the High Court was wholly
incorrect when it arrives at a finding that there is manifest illegality while issuing
notification under Section 7 of the Evacuee Property Act. For the very same reason,
we cannot also accept the findings and the conclusion reached by the Collector-cum-Deputy
Custodian in his order dated 28.05.1979.
93.
The
High Court in the impugned Judgment, also gives a finding that the authorities under
the Act have violated the principles of natural justice in not issuing notice to
the owners of the lands in dispute before taking any action under the Act. We
are of the view that whether any notice under the Act was issued or not, can
only be decided with reference to the records. Such records were neither available
nor any material was produced by the petitioners in support 76 of their
assertion made in the writ petition. Though, this assertion was denied by the respondents
in their counter affidavit filed before the Court, this issue is answered by the
High Court in favour of the petitioners. We disagree with the findings and
conclusion reached by the High Court in this regard.
94.
Re
: Effect of acquisition and Distribution of the Evacuee Propety under the Displaced
Persons (Compensation and Rehabilitation) Act, 1954. The contention of the
learned counsel Shri Mukund is that once the notification under Section 12 of the
Displaced Property Act is issued and the lands are acquired for
re-distribution, no proceedings can lie under the Evacuee Property Act. Per contra,
learned senior counsel Shri Ranjit Kumar would submit this can be so, provided notification
issued under Evacuee Property Act is valid and legal. Shri Mukund, learned counsel
has placed reliance on Major Gopal Singh and Others. vs. Custodian, Evacuee
Property, Punjab (1962) 1 SCR 328, Basant Ram vs. Union of India (1962) Supp. 2
SCR 733 and Dafedar Niranjan Singh and Another vs. Custodian, Evacuee Property
(Pb.) and Another (1962) 1 SCR 214.
95.
In
Major Gopal Singh's case, this Court held that "the power of the Custodian
under the Administration of Evacuee Property Act, 1950, to allot any property to
a person or to cancel an allotment existing in favour of a person rests on the
fact that the property vests in him. But the consequence of the publication of
the notification by the Central Government under Section 12(1) of the Displaced
Persons (Compensation and Rehabilitation) Act with regard to any property or a class
of property would be to divest the custodian completely of his right in the
property flowing from Section 8 of the Administration of the Evacuee Property Act,
1950 and vest that property in the Central Government."
96.
In
Basant Ram's case, this Court held that "It is not in dispute that the evacuee
property in these two villages was notified under Section 12(1) of the Act on
March 24, 1955. The consequence of that notification is that all rights, title
and interest of the evacuee in the property ceased with the result that the
property no longer remained evacuee property. Once, therefore, the property
ceased to be evacuee property, it cannot be dealt with under Central Act No.
XXXII of 1950 or the Rules framed thereunder."
97.
Shri
Ranjit Kumar's submission is that the proceedings under the 1954 Act only
happen if the proceedings under the 1950 Act are valid. If the proceedings
under 1950 Act is invalid, the 1954 Act does not come into operation. To
demonstrate that, the proceedings under the Evacuee Property Act is invalid for
want of notice on the person/persons who would be effected by an order under
the Act, the learned senior counsel has relied on the observations made by the High
Court of Bombay in the case of Abdul Majid Hazi Mohammed vs. P.R. Nayak (AIR 1951
Bombay 440), wherein the Court has observed that mode of service of notice
under Section 7 of Act read with Rule 25 of the Rules, contents of the notice
and the nature of the order that requires to be passed by the Custodian under
the Evacuee Property Act.
98.
In
Dr. Zafar Ali Shah and Others vs. The Assistant Custodian of Evacuee Property [1962]
1 SCR 749, wherein this Court has observed that Section 12 of Displaced Persons
Act, 1954 only affects the rights of Evacuee in his property. The notification made
under that Section did not have the effect of extinguishing the petitioners' rights
in the houses as they had never been declared evacuees.
99.
In
Ebrahim Aboobaker vs. Tek Chand Dolwani [1953] SCR 691, wherein the Court has
stated that it is well established and not disputed that no property of any
person can be declared to be evacuee property unless that person had first been
given a notice under Section 7 of the Act.
100.
In
Nasir Ahmed vs. Assistant Custodian General, Evacuee Property, U.P. Lucknow and
Another [1980] 3 SCR 248, it is held, that Section 7 of the Evacuee Property
Act required the custodian to form an opinion that the property in question was
evacuee property within the meaning of the Act before any action under that
Section was taken. Under Rule 6 of the Administration of Evacuee Property (Central)
Rules, 1950, the custodian had to be satisfied from information in his possession
or otherwise that the property was prima-facie evacuee property before a notice
was issued.
101.
To
answer this issue, we are required to notice certain provisions of both the Acts
to arrive at a finding whether both the Acts operate independent of each other or
whether they are complimentary and the action of one Act has some bearing on the
other Act which we are concerned in these appeals.
102.
The
Evacuee Property Act was mainly intended to provide for the administration of evacuee
property. The Act is primarily concerned with evacuee property and not the
person who is evacuee. The procedure prescribed to declare a particular property
as an evacuee property is mandatory and they are to be complied with by the authorities
notified under the Act and the Rules framed thereunder. The Act is a complete
code itself in the matter of dealing with evacuee property. The question
whether any property or right or interest in any property is or is not evacuee property
can be adjudicated only by the custodian and not the civil courts. Section 7 of
the Act confers the power upon the custodian to declare certain property as
evacuee property.
Sub-section (1)
provides that where the custodian is of the opinion that any property is evacuee
property within the meaning of Section 2(f) of the Evacuee Property Act, then he
may pass an order declaring such property to be evacuee property, provided he
causes notice thereof to be given in such manner as may be prescribed to the
persons interested and he holds such inquiry into matter as the circumstances of
the case permit. Section 8(1) of the Act envisages that once the property has
been declared to be evacuee property under Section 7, that property must be deemed
to have vested in the custodian for the State. Section 8(4) contemplates a
situation even where any evacuee property has vested in the custodian, any
person is in possession thereof shall be deemed to be holding it on behalf of
the custodian.
Section 9 gives the
power to the custodian to take possession of evacuee property which is vested
in him. Section 24 confers a right of appeal against the orders passed under Section
7, 40 and 48 of the Act. Section 27 confers on the Custodian General the power
of revision to revise the orders under the Act either `suo-moto' or on an application
filed by the aggrieved person. Section 28 bars the jurisdiction of the civil courts
from entertaining suits relating to matters within the exclusive jurisdiction
of the custodian. But Section 28 or Section 46 of the Act cannot bar
jurisdiction of the High Court under Article 226 of the Constitution. The
question whether evacuee property has been vested in custodian or not is a question
of fact and the same cannot be interfered with except in exceptional
circumstances which would include violation of principles of natural justice before
notifying a property an evacuee property.
103.
The
Displaced Persons Act provides for payment of compensation and rehabilitation grants
to displaced persons and for matters connected therewith. The Sections which require
to be noticed for the purpose of this case are Sections 12 and 24 of the Displaced
Persons Act. Section 12 of the Act authorizes the Central Government to acquire
evacuee property for rehabilitation of the displaced persons. Section 24 of the
Act vests power in the Chief Settlement Commissioner to set aside or vary any
order passed by any of the officers named in that sub-section at any time, if the
Chief Settlement Commissioner is not satisfied about the legality or propriety
of such order.
104.
To
appreciate and resolve the controversy raised in these appeals, it would be
useful to extract the relevant Section 12 which reads as under: "12. Power
to acquire evacuee property for rehabilitation of displaced persons--(1) If the
Central Government is of opinion that it is necessary to acquire any evacuee property
for a public purpose, being a purpose connected with the relief and rehabilitation
of displaced persons, including payment of compensation to such persons, the Central
Government may at any time acquire such evacuee property by publishing in the Official
Gazette a notification to the effect that the 83 Central Government has decided
to acquire such evacuee property in pursuance of this section. (2) On the publication
of a notification under sub-section (1), the right, title and interest of any evacuee
in the evacuee property specified in the notification shall, on and from the
beginning of the date on which the notification is so published, be extinguished
and the evacuee property shall vest absolutely in the Central Government free
from all encumbrances. (3) It shall be lawful for the Central Government, if it
so considers necessary, to issue from time to time the notification referred to
in sub-section (1) in respect of-- (a) all evacuee property generally; or (b) any
class of evacuee property; or (c) all evacuee property situated in a specified area;
or (d) any particular evacuee property. (4) All evacuee property acquired under
this Section shall form part of the compensation pool."
105.
At
the cost of repetition, let us once again notice the submissions made by
learned counsel for the parties. Shri Mukund, learned counsel for the appellant
submits that once the notification is issued under Section 12 of the Displaced Property
Act, the evacuee property notified under the Evacuee Property Act no more
exists and therefore, the authorities under the Evacuee Property Act could not 84
have passed the order dated 25.09.1970 and 28.05.1979 and, therefore, Chief Settlement
Commissioner of Displaced Persons Act was justified in passing the order dated 11.05.1983.
The learned senior counsel Shri Ranjit Kumar would submit that since there was irregularity
in declaring the disputed lands as evacuee property, the Deputy Custodian General
was justified in setting aside the notification declaring the disputed land as
evacuee property.
106.
Section
12 of the Act authorizes the Central Government to acquire the evacuee property
if it so desires and on such acquisition the property shall vest absolutely in
the Central Government free from all encumbrances. The pre-requisite for acquiring
property under Section 12 is that it must be evacuee property as defined under Section
2 (f) of the Act. The consequence of issuing notification under Section 12 of the
Act would denude the powers of the Custodian under Evacuee Property Act. As
soon as the notification is published, property ceases to be evacuee property. This
Court in the case of Haji Siddik Haji Umar and Others. Vs. Union of India
(1983) 1 SCC 408, has held "that the publication of a notification under Section
12 extinguishes the right, title or interest of the evacuee in the evacuee
properties. By virtue of Section 12(2) they vest absolutely in 85 the Central
Government free from all encumbrances. The only relief available to an evacuee is
compensation in accordance with such principles and in such manner as may be agreed
upon between the two countries. The jurisdiction of the Court to consider any orders
passed by the Custodian or any action taken by him would not be barred if the orders
passed or the action taken was without jurisdiction. But, if a party succeeds in
establishing that the action taken or the orders passed were outside the
purview of the Act, then, those would not be the orders passed under the
Act."
107.
While
answering the issue whether the `disputed lands' is evacuee property or not, we
have held that the notification issued under Section 7 of the Evacuee Property Act
is valid in law and, therefore, one and the only conclusion that can be reached
on this issue is, in the facts and circumstances of the case, in view of the notification
issued by the Central Govt. under Section 12 of the Displaced Persons Act, for the
`disputed lands' had vested in the Central Govt. and thereby had lost the
status of evacuee property.
108.
Shri
Ranjit Kumar also submitted that the order passed by the Chief Settlement
Commissioner is one without jurisdiction, since the 86 said authority can exercise
his power of revision to set a side any order passed by any of the officers named
in that Section. Since Deputy Custodian General is not one of those officers
named in that sub-section, he could not have exercised his power of revision
against an order passed by Deputy Custodian General dated 28.05.1979.
109.
Section
24 of the Act speaks of power of revision of the Chief Settlement Commissioner.
The said Section reads :- "Power of revision of the Chief Settlement Commissioner
- (1) The Chief Settlement Commissioner may at any time call for the record of
any proceeding under this Act in which a Settlement Officer, an Assistant Settlement
Officer, an Assistant Settlement Commissioner, an Additional Settlement Commissi
oner, a Settlement Commissioner, a Managing officer or a managing corporation
has passed an order for the purpose of satisfying himself as to the legality or
propriety of any such order and may pass such order in relation thereto as he
thinks fit."
110.
Section
24 of the Act gives power of revision to Chief Settlement Commissioner either on
his motion or an application made to him to call for the record of any
proceeding under the Act in order to satisfy himself as to legality or
propriety of any order passed therein and to pass such order in relation
thereto as he thinks fit. The Section also provides that the said powers can be
used in 87relation to the orders passed by Settlement Commissioner, an
Assistant Settlement Commissioner, an Additional Settlement Commissioner, a
Settlement Commissioner, a Managing officer or a managing corporation. A bare
reading of the Section shows that the Chief Settlement Commissioner can revise the
order if in his opinion that the orders passed by the officers named in the
Section are either illegal or improper.
In the instant case, the
Chief Settlement Commissioner has invoked his revisional powers at the request
of the allottees/displaced persons to revise the proceedings and the order
passed by the Collector-cum-Deputy Custodian under the provisions of the
Evacuee Property Act dated 28.05.1979. In view of the plain language of the Section,
there cannot be two views. In our view, what the Chief Settlement Commissioner
can do is only to revise the orders passed by those officers who are notified in
the Section itself and not of the officers under the provisions of the Evacuee
Property Act, if the orders passed by the named officers in this Section is
either illegal or improper. To this extent, we are in agreement with the submission
made by the learned senior counsel Shri Ranjit Kumar. Therefore, the orders
passed by the Chief Settlement Commissioner in exercise of his revisional powers
under the Displaced Persons Act is without jurisdiction and non-est in law.
111.
To
sum up, our conclusions are :
i.
The
High Court ought not to have entertained and granted relief to the writ petitioner/contesting
respondents, since there was inordinate and unexplained delay in approaching the
court.
ii.
The
Judgment and order of the High Court in W.P. No. 1061 of 1966 having attained finality
was binding on the authorities under the Evacuee Property Act and the High Court
ought not to have permitted the writ petitioners/contesting respondents herein to
re-agitate the correctness or otherwise of the notification dated 11.12.1952 in
the subsequent writ petition.
iii.
A
subsequent writ petition was not maintainable in respect of an issue concluded between
the parties in the earlier writ petition.
iv.
In
view of the specific bar under Section 46 of the Evacuee Property Act, writ petition
filed by the contesting respondents before the High Court was maintainable.
v.
Since
we have taken exception to the orders passed by the Collector-cum-Deputy Custodian
and the Judgment and order passed by the High Court in W.P. No. 17222 of 1990, we
hold notification dated 11.12.1952 is valid in law.
vi.
Since
the notification issued under Section 7 of the Act is valid in law, the evacuee
property acquired by the Central Govt. under Section 12 of the Displaced
Persons Act ceases to be evacuee property and becomes the property of the Central
Govt.
vii.
In
view of the clear language employed in Section 24 of the Act, the Chief
Settlement Commissioner had no jurisdiction to revise the order passed by the Collector-cum-Deputy
Custodian under the Evacuee Property Act.
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In
view of the above discussion, the appeals are allowed. The Judgment and order passed
by the High Court in W.P. 17222 of 1990 dated 27.04.2000 is set aside. Costs
are made easy.
..............................J.
[ D.K. JAIN ]
..............................J.
[ H. L. DATTU ]
New
Delhi,
May
05, 2011.
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