SHANKARA CO-OP HOUSING SOCIETY LTD. v. M. PRABHAKAR & ORS.

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A 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 sec 48, wherein it is stated that 'delay defeats equity and that /he discretionary relief of condonation can be had, provided one has not given by his conduct, given a go by to his rights'.

62Copy pinpoint62. 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 was 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. However, the High D 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 •he Evacuee Property Act declaring certain properties as evacuee properties. The Court E 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 it can 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 Act. ~ince by then, the petitioner had the knowledge of the notification issued under the Act, otherwise _

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PRABHAKAR & ORS. [H.L. DATTU, J.] there was no reason for the High Court to have specifically A 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 B Mandal Buchaiah and the judgment and order passed by the Writ court cannot be put against the other legal representatives of the Manda! 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 c 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 JIJdgment and order of the High Court would not affect the rights of the other legal heirs of late Mandal Buchaiah. D

64Copy pinpoint64. Before we consider the contentions of learned counsel, let us first notice the settled legal position in matters like the present case.

65Copy pinpoint65. In Shakur Basti Shamshan Bhumi Sudhar S.amiti v. E Lt. Governor, NCT of Delhi (2007) 13 SCC 53, the order passed by the High Court for closure of cremationground, 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 Salvant 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 Salvant 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 H

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A 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 B nullity."[Emphasis supplied by us]

66Copy pinpoint66. 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. C Sadatullah, (2007) 6 SCC 566, it was held:

"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 D 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." G

67Copy pinpoint67. 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: H "25. The question still remains whether, on facts of this

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PRABHAKAR & ORS. [H.L. DATTU, J.] case, the direction given in the Order dated 19th October, A 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 B proceeded 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 c itself. But the fact remains that the application for this very relief has been rejected on 6th November, 1997. No appeal or revision was filed against that order. The Order dated 6th November, 1997 has therefore become final. Once such a relief has been refused and the refusal has 0 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 November, 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 G 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 H

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A whether such relief ought to have been granted cannot be agitated in execution proceeding. We find considerable force in the submission urged on behalf of the respondent. In these proceedings it is not permissible to go beyond the order of the learned Judge dated 6thMay, 1994 B 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 6thMay, 1994 and in such proceeding, it was not open to the appellant either to contend that the judgment and order dated c 6thMay, 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 0 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."

69Copy pinpoint69. In Oriental Bank of Commerce v. Sunder Lal Jain and Anr. (2008) 2 sec 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 ORT, 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, appellant Bank approached this Court against the order of the High Court. This Court observed that when a decree passed by the ORT 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:

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PRABHAKAR & ORS. [H.L. DATTU, J.] "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 wl1erein 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 ORT had attained finality and proceedings c 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, D 1993."

70Copy pinpoint70. 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: E

'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: F

"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: G 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 H

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A 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 s 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 .... " c 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 D heirs of late Manda! Buchaiah and whether the authorities under the Evacuee Property Act could have 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. E

72Copy pinpoint72. In the Writ Petition filed by Manda! 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 F by the Writ Court. In the revision petition filed by the other legal representatives of late Manda! 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 G 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 H

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PRABHAKAR & ORS. [H.L. DATIU, J.] 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 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 WP. No. 1051 of 1966 that this Court had negatived the c 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 WP. 1051 of 1966 is to the effect that in the writ petition, the rights of the parties D 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".

73Copy pinpoint73. We do not agree with the reasoning and conclusion · E 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 circumst~nces of the facts of that 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 judgme.nt. A judgment is not to be construed as a Statute. It must be construed upon reading the same as a whole. For the said H

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A purpose, the attending circumstances may also be taken into consideration."

74Copy pinpoint74. 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 8 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 obse..Ved 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 E 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 and, therefore, they could not have reagitated the correctness or

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PRABHAKAR & ORS. [H.L. DATTU, J.] otherwise of the notification dated 11.12.1952 issued under A Section 7 of the Evacuee Property Act.

75Copy pinpoint75. 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 8 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:

"....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 H

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A property is an owner of the property acquired but entitled to receive compensation pro rata."

76Copy pinpoint76. 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 8 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, 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 sec E 135.

77Copy pinpoint77. In our view, this issue need not detain us for long. This Court in the case of Devita/ Modi, Proprietor, Mis Oaluram Pannala/ Modi v. Sales Tax officer Rat/am & 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 evel)f time, and that plainly is inconsistent with considerations of Public policy." H

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PRABHAKAR & ORS. [H.L. DATTU, J.]

78Copy pinpoint78. In the present case, it is admitted fact that when the A contesting respondents filed W.P. No. 1051 of 1966, the ground of non-compliance of statutory provision was very much available to them, 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 B 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 c raise that ground and answer the same, since the same is hit by the principles analogous to constructive res judicata.

79Copy pinpoint79. 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 D 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) 5· SCC 675, Ranjit Singh vs. Ravi Prakash E (2004) 3 SCC 682 and Kamataka State Industrial Investment and Development Corporation Ltd. vs. Cava/et 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 under Section 28 and Section 48 of the Evacuee F 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, G 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 H ·

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A Corporation of India Ltd. and Ors. (2004) 3 sec 553.

80Copy pinpoint80. 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 8 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, 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.

81Copy pinpoint81. 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.

82Copy pinpoint82. 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.

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PRABHAKAR & ORS. [H.L. DATTU, J.] (4) Supervisory jurisdiction under Article 227 of the A 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 a 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."

83Copy pinpoint83. 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 · F 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 jurisdiction in setting aside the G 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." H

532 SUPREME COURT REPORTS ,[2011] 7 S.C.R.

84Copy pinpoint84. In Karnataka State Industrial Investment and D.~velopment 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 B 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." c

85Copy pinpoint85. 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 :- D "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 E aggrieved party to obtain relief 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." F

86Copy pinpoint86. 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 G 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 H

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PRABHAKAR & dRS. [H.L. DATIU, J.]

issues both offact and law. Exercise of the jurisdiction is, it is true, discretionary, but the disctetion must be exercised on sound judicial princ,iples. 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~"

87Copy pinpoint87. In Om Prakash Vs. State of Haryana and others (1971) 3 SCC 792, this Court observed :- c "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 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."

88Copy pinpoint88. In ABL International Ltd. and another Vs. Export Credit Guarantee Corporation of India Ltd. and others (2004) 3 SCC 553, this Court has held :- G

"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 H

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A 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 B 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." c 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 ins. 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 ors. 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." ,H

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PRABHAKAR & ORS. [H.L. DATIU, J.]

90Copy pinpoint90. We are of the view that the High Court has not A committe__Q an error while entertaining a writ petition filed under Ar-ticle 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 under the Evacuee Property Act, there is specific bar for the civil court to adjudicate B 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 c 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). D

91Copy pinpoint91. 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 E 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 F Baksh Khan had the money decree against late Manda! 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 G by anybody including late Manda! 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 H

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A 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 B 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 c 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 obtained 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 0 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 ~vacuee 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 G 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 Act, the procedure prescribed therein had H been followed and this assertion had not been denied by the

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PRABHAKAR & ORS. [H.L. DATIU, J.] respondents by filing their reply affidavit and since no denial of A 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. B

92Copy pinpoint92. 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 C 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 D 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 E 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 F 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, G 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 H

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A 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 B the above facts have to be proved with reference to the records and there cannot be oral evidence 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 c 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 0 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. E

93Copy pinpoint93. 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. F 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 of their assertion made in the writ petition. Though, this assertion was denied by the · G 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.

94Copy pinpoint94. Re : Effect of acquisition and Distribution of the H

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PRABHAKAR & ORS. [H.L. DATTU, J.] Evacuee Propety under the Displaced Persons A (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 B 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. C 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.

95Copy pinpoint95. In Major Gopal Singh's case, this Court held that "the D 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 E 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 F Central Government."

96Copy pinpoint96. 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 G 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. XXXll of 1950 or the Rules framed thereunder." H

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97Copy pinpoint97. 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 B 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 c 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.

98Copy pinpoint98. In Dr. Zafar Ali Shah and Others vs. The Assistant D 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.

99Copy pinpoint99. 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.

100Copy pinpoint100. 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 G 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 H

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PRABHAKAR & ORS. [H.L. DATTU, J.] possession or otherwise that the property was prima-facie A evacuee property before a notice was issued.

101Copy pinpoint101. 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 8 are complimentary and the action of one Act has some bearing on the other Act which we are concerned in these appeals.

102Copy pinpoint102. 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 C 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 D 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 G 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 H

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A . 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 B 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 c 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.

103Copy pinpoint103. The Displaced Persons Act provides for payment of compensation and rehabilitation grants to displaced persons and for matters connected there 1 vith. 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.

104Copy pinpoint104. To appreciate and resolve the controversy raised in these appeals, it would be useful to extract the relevant Section 12 which reads as under:

G "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, H including payment of compensation to such persons, the

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PRABHAKAR & ORS. [H.L. DATIU, J.] Central Government may at any time acquire such A evacuee property by publishing in the Official Gazette a notification to the effect that the Central Government has decided to acquire such evacuee property in pursuance of this section. B (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 C shall vest absolutely in the Central Governme.nt 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- D

(a) all evacuee property generally; or

(b) any class of evacuee property; or

(c) all evacuee property situated in a specified area; or E

(d) any particular evacuee property.

(4) All evacuee property acquired under this Section shall form part of the compensation pool." F

105Copy pinpoint105. 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 G Property Act' no more exists and therefore, the authorities under the Evacuee Property Act could not 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 H

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A 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. B

106Copy pinpoint106. 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- C 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 sec 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 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." G

107Copy pinpoint107. 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 H

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PRABHAKAR & ORS. [H.L. DATTU, J.] of the case, in view of the notification issued by the Central A 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.

108Copy pinpoint108. Shri Ranjit Kumar also submitted that the order 8 passed by the Chief Settlement Commissioner is one without jurisdiction, since the 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 C have exercised his power of revision against an order passed by Deputy Custodian General dated 28.05.1979.

109Copy pinpoint109. Section 24 of the Act speaks of power of revision of the Chief Settlement Commissioner. The said Section reads:- D "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 E 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." F

110Copy pinpoint110. 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 G as he thinks fit. The Section also provides that the said powers can be used in relation 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. H

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A 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 B 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 c 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 D 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.

111Copy pinpoint111. 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.

H (Ill) A subsequent writ petition was not maintainable in

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PRABHAKAR & ORS. [H.L. DATTU, J.] 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 c 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 D 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 E had no jurisdiction to revise the order passed by the Collector-cum-Deputy Custodian unde.r the Evacuee Property Act.

112Copy pinpoint112. In view of the above discussion, the appeals are F allowed. The Judgment and order passed by the High Court in W.P. 17222of1990 dated 27.⁴.2000 is set aside. Costs are made easy.

N.J. Appeals allowed. G