Supreme Court of India
SHANKARA CO-OP HOUSING SOCIETY LTD.versusM. PRABHAKAR & ORS.
- Citation
- 2011 INSC 359
- Decided
- 5 May 2011
- Disposal
- Appeal(s) allowed
- Bench
- D K JAIN
Holding
The 1952 notification under Section 7 was valid, the acquisition under Section 12 transferred title to the Central Government, the Chief Settlement Commissioner lacked jurisdiction to revise the Custodian’s order, and the later writ petition was barred by delay and the finality of the earlier judgment.
Summary
The dispute concerned about 90 acres of land in Andhra Pradesh that had been declared evacuee property under the Administration of Evacuee Property Act, 1950 by a notification dated 11‑12‑1952 and later acquired by the Central Government under Section 12 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 for rehabilitation of displaced persons. The original owners’ heirs filed multiple writ petitions challenging the notification and subsequent allotments, but the High Court dismissed earlier petitions on grounds of delay and failure to exhaust statutory remedies, and later set aside a revision order of the Chief Settlement Commissioner that had restored the evacuee‑property status. The Supreme Court held that the 1952 notification was valid, the acquisition under Section 12 extinguished the evacuee status, the Chief Settlement Commissioner lacked jurisdiction to revise the Collector‑cum‑Deputy Custodian’s order, and the High Court should not have entertained the later writ petition because of inordinate delay and the finality of the earlier judgment. The appeals were allowed and the High Court’s 2000 order was set aside.
Issues considered
- Whether the petitioners’ delay and laches bar the writ petition under Article 226.
- Whether the judgment in the 1966 writ petition had attained finality and precludes re‑agitation of the 1952 notification.
- Whether the disputed lands qualify as evacuee property under the Evacuee Property Act, 1950.
- Effect of a notification under Section 12 of the Displaced Persons Act on the status of evacuee property.
- Whether the Chief Settlement Commissioner had jurisdiction under Section 24 of the Displaced Persons Act to revise the order of the Collector‑cum‑Deputy Custodian.
- Whether a High Court can go into disputed facts in a writ petition under Article 226/227.
- Whether the doctrine of constructive res judicata applies to the successive writ petitions.
Legislation cited
- Administration of Evacuee Property Act, 1950s. 24, s. 27, s. 28, s. 40, s. 46, s. 7, s. 8
- Constitution of Indias. Article 226, s. Article 227
- Displaced Persons (Compensation and Rehabilitation) Act, 1954s. 12, s. 24
Subjects
Evacuee Property ActDisplaced Persons ActArticle 226Article 227delaylachesres judicataconstructive res judicatarevision jurisdictionacquisitionrehabilitationproperty rights
Judgment
[2011] 7 S.C.R. 468
A SHANKARA CO-OP HOUSING SOCIETY LTD.
v.
M. PRABHAKAR & ORS.
(Civil Appeal No. 4099 of 2000)
MAY 05, 2011
B
[D.K. JAIN AND H.L. DATIU, JJ.]
Displaced Persons (Compensation and Rehabilitation)
Act, 1954:
c
s. 12 - Property notified uls. 7 of the Evacuee Property
Act - Subsequently issuance of Notification uls. 12 -
Acquisition of evacuee property for rehabilitation of displaced
persons - Effect of - Held: Notification issued uls. .7 of the
0 Evacuee Property Act declaring the property to be evacuee
property was valid in law - In view of the Notification issued
by the Central Government uls. 12, the property vested in the
Central Government - Thus, the property lost the status of
evacuee property - Administration of Evacuee Property Act,
E 1950- s. 7.
s. 24 - Power of revision of Chief Settlement
Commissioner under - Scope of - Held: Chief Settlement
Commissioner can revise the order if in his opinion the orders
passed by the officers named in the Section are either illegal
F or improper - On facts, the Chief Settlement Commissioner
invoked his revisional powers at the request of the allotteesl
displaced persons to revise the proceedings and the order
passed by the Collector-cum-Deputy Custodian under the
provisions of the Evacuee Property Act- Therefore, the orders
G passed by the Chief Settlement Commissioner is without
jurisdiction and non-est in law - Administration of Evacuee
Property Act, 1950.
Constitution of India, 1950:
H 468
SHANKARA CO-OP HOUSING SOCIETY LTD. v. M. 469
PRABHAKAR & ORS.
Article 226 - Belated writ petition challenging the A
Notification issued under the Evacuee Property Act, declaring
· certain properties as evacuee property - Maintainability of -
Held: High Court ought not to have entertained and granted
relief to the writ petitioners since there was inordinate and
unexplained delay in approaching the court/authorities at B
every stage for redressal of their grievance - They claimed
wrong reliefs/incomplete reliefs before the Authorities - They
questioned the correctness of the said Notification by way of
filing an amendment application - Also in the earlier writ
petition challenging the Notification, the finding regarding c
delay and failure to avail alternate remedy had attained
finality - More so, during the period of delay, interest accrued
in favour of the third party - Delay//aches.
Article 226 - Writ petition filed by original owner of land
challenging the Notification issued u/s. 7 of the Evacuee D
Property Act declaring certain properties as evacuee
properties - Petition dismissed by the High Court since the
claim was highly belated and there was a failure to avail the
alternate remedy provided under the Act - Said order
attaining finality - Subsequently writ petition filed re-agitating E
the said issue which had attained finality and the Division
Bench of the High Court entertained the same - Held: The
judgment and order of the High Court having attained finality
was binding on the authorities under the Evacuee Property
Act - Division Bench of the High Court could not have F
permitted the writ petitioners to re-agitate the correctness or
otherwise of the Notification issued uls. 7 of the Evacuee
Property Act in the subsequent writ petition - A subsequent
writ petition was not maintainable in respect of an issue
concluded between the parties in the earlier writ petition - G
Administration of Evacuee Property Act, 1950.
Articles 226 and 227 - High Court while entertaining writ
petition filed under Article 226 and 227 wherein the
proceedings uls. 7 of the Evacuee Property Act was H
470 SUPREME COURT REPORTS [2011] 7 S.C.R.
A questioned, going into disputed questions of facts -
Maintainability of - Held: Writ petition is maintainable - 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
B the custodian under the Act - Any person aggrieved by the
findings of the custodian can avail the other remedies
provicied under the Act - Thus, the finding and the conclusion
reached by the Authorities under the Act in an appropriate
case can be questioned in a petition filed under Article 226
c - Administration of Evacuee Property Act, 1950.
Res judicata - Principles of constructive res judicata -
Applicability of - When ground open to be raised was not
raised in the earlier writ petition whereas in a subsequent writ
petition, the High Court permitted the petitioners to raise the
D said ground - Justification of- Held: Not justified - The same
is hit by the principles analogous to constructive res judicata
- Doctrines/Principles.
Respondents are the legal representatives of 'M' who
E was owner of certain lands. One 'R' obtained a money
decree against 'M' and allegedly in the execution
proceedings, 'R' purchased the lands belonging to 'M' in
an auction. Thereafter, his name was recorded in the
Revenue Record as owner of the said lands. In the year
F 1940, 'R' expired and his legal representatives migrated
to Pakistan after partition. In the year 1951, the Deputy
Custodian and Collector issued notice to the legal heirs
of 'R' under sub-Section (1) of Section 7 of the
Administration of Evacuee Property Act, 1950. Public
G notices were issued as also the ancestors of the
contesting respondents were give!"' notices. However, no
objections were filed to the notices. The Deputy
Custodian and Collector issued a Notification dated
11.12.1952 declaring the said property as an Evacuee
Property under Section 7 of the Evacuee Property Act.
H
SHANKARA CO-OP HOUSING SOCIETY LTD. v. M. 471
PRABHAKAR & ORS.
The same was published and the name of the Collector/ A
Custodian was entered in the Revenue Records.
Thereafter, the Central Government acquired the said
lands by issuing Notification under Section 12 of the
Displaced Persons Act for the rehabilitation of the
persons who were displaced during the partition. The B
said declaration of the lands as evacuee prdperty and the
subsequent acquisition by the Central Government was
not challenged upto the year 1955. Thereafter, the
ancestors of the respondents made only repeated
representations before the authorities. c
In the year 1966, Tahsildar proposed to auction the
disputed lands on yearly lease basis. Aggrieved, 'M'-
ancestor of the respondents filed Writ Petition No. 1051
.of 1966 inter-alia, seeking a writ of prohibition or direction
restraining the Tahsildar from auctioning the said lands D
and to direct the authorities to decide the representation
filed by them. The Regional Settlement Commissioner/
Custodian of Evacuee property averred that the notice as
required had been issued to all the interested parties. The
High Court dismissed the writ petition on the ground of E
delay/laches; and the failure to avail alternate remedy
provided under the Evacuee Property Act. During the
pendency of the writ petition, a portion of the land was
allotted to 'EB' and she was impleaded as one of the
respondents in the writ petition. Some of the respondents F
also filed a revision petition under Section 27 of the
Evacuee Property Act before the Deputy Custodian
General to revise the Notification dated 11.12.1952. In the
year 1968, some portion of the lands was allotted to 'G'
and 'J' as also 'MD' and their names were recorded in the G
revenue records. Thereafter, by order dated 25.09.1970
the revision petition was allowed and the case was
remanded to the Custodian-cum-Collector for re-
determination of the evacuee nature of the lands. On
remand, the Collector-cum-Deputy Custodian of Evacuee H
472 SUPREME COURT REPORTS (2011] 7 S.C.R.
A Property by order dated 28.05.1979 held that since there
was no evidence to show that 'R' came to be the owner
of the land in pursuance of an auction by the court in
execution of the money decree, thus, 'M' and the other
contesting respondents continue to be the owners of the
B disputed lands. Aggrieved, the allottees filed a· revision
petition before the Chief Settlement Commissioner under
the Displaced Persons Act, who by order dated
11.05.1983 set aside the order of the Collector-cum-
Deputy Custodian dated 28.05.1979 and declared that the
c property belonged to late 'R' and that by virtue of the
Notification dated 11.12.1952, the disputed lands are
evacuee property. Meanwhile, in view of the pendency of
the proceedings, the Tahsildar refused to give
possession of the disputed lands to the allottees.
D The contesting respondents again filed a revision ·
petition under Section 33 of the Displaced Persons Act
and the same was dismissed. The contesting
respondents then filed Writ Petition No. 7517of1983 inter
alia, requesting the court to direct the authorities under
E the Displaced. Persons Act to initiate suo-moto
proceedings to determine the claim of ownership of the
disputed lands and the same was also dismissed. The
contesting respondents filed another Writ Petition No.
17722 of 1990 inter alia requesting the High Court to issue
F a writ or order directing the Commissioner, Survey
Settlement and Land Records/Chief Settlement
Commissioner, Evacu.ee Property to conduct an enquiry
into questions of title of disputed lands and correctness
of the declaration of the said property as evacuee
G property. Subsequently, the contesting respondents filed
an application to amend the prayer in the writ petition. It
was to include a prayer to quash the Notification dated
11.12.1952 and the same was allowed. The appellants
also filed an application for impleadment as a party to the
H proceeding and the same was allowed. The Division
SHANKARA CO-OP HOUSING SOCIETY LTD. v. M. 473
PRABHAKAR & ORS.
Bench of the High Court allowed the writ petition by A
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. Therefore, the
instant appeals were filed. B
Allowing the appeals, the Court
HELD: 1. (i)The High Court ought not to have
entertained and granted relief to the writ petitioner/
contesting respondents, since there was inordinate and C
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 o
High Court ought riot to have permitted the writ
petitioners/contesting respondents 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 E
· in respect of an issue c9ncluded between the parties in
the earlier writ petition.
(iv) In view of the specific bar under Section 46 of the
Evacuee Property Act, the writ petition filed by the F
contesting respondents before the High Court was
maintainable.
(v) Since exception is taken to the orders passed by
the Collector-cum-Deputy Custodian and the judgment G
and order passed by the High Court in W.P. No. 17222 of
1990, the 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 Government under Section 12 of the H
474 SUPREME COURT REPORTS [201_1] 7 S.C.R.
A Displaced Persons Act ceases to be evacuee property
and becomes the property of the Central Government.
(vi) In view of the clear language employed in Section
24 of the Act, the Chief Settlement Commissioner had no
8 jurisdiction to revise the order passed by the Collector-
cum-Deputy Custodian under the Evacuee Property Act.
Thus, the judgment and order passed by the High Court
in W.P. 17222 of 1990 dated 27.04.2000 is set aside.
[Paras 111 and 112) [546-E-H; 547-A-G]
C Delay and Laches:
2.1. In the instant case, the respondents in the writ
petition had raised a specific plea of delay, as a bar to
grant relief to the petitioners. It was perhaps necessary
0 for the Court to have specifically dealt with this issue. 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
E 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
F 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. [Para 60)
[516-B-D]
G 2.2. There was 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 Evacw~e Property Act. For the delay from 1952
H to 1955, the contesting respondents only submitted that
SHANKARA CO-OP HOUSING SOCIETY LTD. v. M. 475
PRABHAKAR & ORS.
they were not aware of the Notification issued under the A
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
contended that they were in possession of the property B
and they were making representations before the
authorities under the Evacuee Property Act for redressal
of their grievance. As regards 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 c
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
0
Government to issue appropriate directions. Thus, at
every stage, there was inordinate delay in approaching
the authorities for redressal of their grievance. 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 E
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 the contesting
respondents that the petitioners in their pleadings before F
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. The power of the
High Court under Article 226 of the Constitution to issue G
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 H
476 SUPREME COURT REPORTS (2011) 7 S.C.R.
A discretion in favour of the petitioners therein. The
unexplained delay on the part of 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
B 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. Delay defeats equity and that the discretionary
c relief of condonation can be had, provided one has not
given by his conduct, given a go by to his rights'. [Para
61] [516-E-H; 517-A-H; 518-A-B]
Lindsay Petroleum Company vs. Prosper Armstrong
Hurd etc (1874)5 PC 221; Moon Mills Ltd. vs. Industrial
D Courts AIR 1967 SC 1450; Maharashtra State Road
Transport Corporation vs. Ba/want Regular Motor Service AIR
1969 SC 329: 1969 SCR 808; Amrit La/Berry vs. CCE
(1975) 4 SCC 714: 1975 (2) SCR 960; State of Maharashtra
vs. Digambar(1995) 4 SCC 683: 1995 (1) Suppl. SCR 492;
E Shiv Dass vs. Union of India (2007) 9 SCC 274: 2007 (1)
SCR 1127; City and Industrial Development Corporation vs.
Dosu Aardeshir Bhinandiwala and Ors. (2009) 1 SCC 168:
2009 (1) SCR 196; State of M.P. and Ors. vs. Nandlal Jaiswal
and Ors. (1986) 4 SCC 566: 1987 (1) SCR 1; Mis Dehri
F Rohtas Light Railway Company Ltd. vs. District Board,
Bhojpur and Ors. (1992) 2 CC 598: 1992 (2) SCR 155;
Municipal Council vs. Shaha Hyder Baig (2002) 2 SCC 48 -
referred to.
G Effect of the judgment and order of the High Court in W.P.
No. 1051 of 1966:
3.1. In the writ petition filed by 'M', the Regional
Settlement Commissioner and Custodian of Evacuee
Property, was arrayed as one of the respondents. That
H only means, he was fully aware of the judgment and order
SHANKARA CO-OP HOUSING SOCIETY LTD. v. M. 477
PRABHAKAR & ORS.
passed by the Writ Court. In the revision petition filed by A
the other legal representatives of late 'M', he was aJso
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 B
again, in the order by the Collector-cum-Deputy
Custodian dated 28.5.1979, there was no reference to the
judgment and order passed by the High Court. However,
in the order passed by Chief Settlement Commissioner
of Evacuee Property, then~. was reference to the judgment c
of the High Court. The said authority while setting aside
the order passed by Collector-cum-Deputy Custodian as
nullity, did not rely on the judgment and order passed by
the High Court. In the subsequent Writ Petition filed, the
respondents, in their Counter Affidavit had specifically 0
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, observed in its E
order that 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 F
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 G
Notification issued under Section 7 of the Act". The
reasoning and conclusion reached by the Division Bench
of the High Court cannot be accepted. The decision of
the court was not correctly read. However, it is agreed
that the judgment should be read as a whole and H
478 SUPREME COURT REPORTS [2011] 7 S.C.R.
A understood in the context and circumstances of the facts
of that case. [Paras 72 and 73] [524-E-H; 525-A-F]
U. P. State Road Transport Corporation v. Asstt.
Commissioner of Police (Traffic) Delhi 2009(3) SCC 634 -
referred to.
8
3.2 The judgment and order passed by the High
Court in W.P. No. 1051 of 1966 is noticed. The court, while
narrating the facts, specifically observed that what was
challenged before it by the petitioner was the Notification
C 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
observed that petitioner has failed to avail the alternate
remedy of appeal provided under the Act and at the
D 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
E Act, could not have filed the writ petition. 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
F belated stage. Therefore, 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 it can be said that
G principles of res judicata would apply in the facts and
circumstances of this case. This Court is 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
H
SHANKARA CO-OP HOUSING SOCIETY LTD. v. M. 479
PRABHAKAR & ORS.
of action at a belated stage in a writ petition filed in the A
year 1990. The course adopted by the High Court not
only leads to confusion but also leads to inconvenience.
(Para 74] [526-B-G]
Shakur Basti Shamshan Bhumi Sudhar Samiti v. Lt. B
Governor, NCT of Delhi (2007) 13 SCC 53: 2007 (13)
SCR 145; A.P. Housing Board v. Mohd. Sadatul/ah (2007)
6 SCC 566: 2007 (5) SCR 107; Hindustan Construction Co.
Ltd: and Anr. v. Gopal Krishna Sengupta and Ors.- (2003) 11
SCC 210; Food Corporation of India v. S.N. Nagarkar, (2002) C
2 SCC 475; Oriental Bank of Commerce v. Sunder Lal Jain
and Anr. (2008) 2 SCC 280: 2008 (1) SCR 213; India
Household and Healthcare Ltd. v. LG Household and
Healthcare Ltd. 2007 (5) SCC 510: 2007 (3) SCR 726 -
referred to.
D
4. The submission that the writ petition was filed by
one of the co-owners of late 'M' and judgment and order
passed would not bind the other parties cannot be
accepted. No co-owner has a definite right, title and
interest in any particular item or portion thereof. On the E
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. [Para 75) [527-B-C]
A. Viswanath Pillai and Ors. vs. The Special Tahsildar F
for Land Acquisition No. IV and Ors. (1991) 4 SCC 17: 1991
(3) SCR 465 - referred to.
Constructive Res judicata:
5. It is admitted fact that when the contesting G
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 H
480 SUPREME COURT REPORTS [2011] 7 S.C.R.
A under the Evacuee Property Act. In the subsequent writ
petition, initially, they had not questioned the legality of
the Notification, but raised it by filing an application which
was allowed by the High Court. Thus, the High Court was
not justified in permitting the contesting respondents to
B raise that ground and answer the same, since the same
is hit by the principles analogous to constructive res
judicata. [Para 78] [529-A-C]
Daya Rao vs. State of U.P. (1962) 1 SCR 574; Hosunak
Singh vs. Union of India (1979) 3 SCC 135: 1979 (3) SCR
C 399; Devi/al Modi, Proprietor, Mis Daluram Pannalal Modi
v. Sales Tax officer Rat/am and Ors. AIR 1965 SC 1150:
1965 SCR 686 - referred to.
Whether the High Court could have gone into the facts
D under its writ jurisdiction:
6.1. The High Court in its writ jurisdiction does not
enquire into complicated questions of fact. The High
Court also does not sit in appeal over the decision of an
E 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
F 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
G 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,
H
SHANKARA CO-OP HOUSING SOCIETY LTD. v. M. 481
PRABHAKAR & ORS.
enter upon a decision on questions of fact raised by the A
petitioner. [Para 80] [530-A-D]
6.2. 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 B
Section 7 of the Evacuee Property Act was questioned.
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 C
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 if it
involves disputed questions of facts. [Para 90] [535-A-C] D
Custodian of Evacuee Property Punjab and Ors. vs.
Jafran Begum (1967) 3 SCR 736 - relied on.
Surya Dev Rai vs. Ramchander Rai and Ors. (2003) 6 E
SCC 675: 2003 (2) Suppl. SCR 290; Ranjit Singh vs. Ravi
Prakash (2004) 3 SCC 682:2004 (3) SCR 250; Kamataka
State Industrial Investment and Development Corporation Ltd.
vs. Cava/et India Ltd. and Ors. (2005) 4 SCC 456: 2005 (2)
SCR 1183; State of Orissa vs. Dr. Miss Binapani Dei and F
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 Ors. (1971) 3 SCC
792; ABL International Ltd. and Anr. vs. Export Credit
Guarantee Corporation of India Ltd. and Ors. (2004) 3 SCC
553 - referred to. G
Whether the lands in question are evacuee property
under Evacuee Property Act:
7.1 It is admitted that before the High Court, parties H
482 SUPREME COURT REPORTS [2011] 7 S.C.R.
A to the /is had not produced any records. The contesting
respondents claimed that they were not dispossessed
from the lands in dispute pursuant to any money decree
by late 'R' or his legal representatives. It is the stand of
the appellants and also the State Government that the
B name of late 'R' had been recorded in the Khatra
Khatauni and the authorities under the Evacuee Property
Act after issuing notices to the legal representatives of
late 'R' and also the public notice, the Notification under
Section 7 of the Act was issued and gazetted. Since the
c 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
0
law. The reasoning 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 'R' found a place in the revenue
E 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
contesting respondents to prove their title, right and
interest in the property. It is very strange that the High
F Court, in the absence of any records of the year 1952,
proceeded 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.
3 It also looks odd and queer that the High Court, in the
absence of any records of the civil court and the
executing court, proceeded 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
H auctioned disputed lands and late 'R' became the owner
SHANKARA CO-OP HOUSING SOCIETY LTD. v. M. 483
PRABHAKAR & ORS.
of the lands, though it concedes that the above said facts A
have to be proved with reference to the records and
there cannot be oral evidence in this regard. It was highly
inappropriate for the High Court to have proceeded to
determine whether any notice was issued to late 'M'
before notifying the property as evacuee property B
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. c
Thus, the High Court was wholly incorrect when it arrived
at a finding that there is manifest illegality while issuing
Notification under Section 7 of the Evacuee Property Act.
The findings and the conclusion reached by the
Collector-cum-Deputy Custodian in his order dated
0
28.05.1979 that 'M' and other contesting respondent
continue to be the owners of the disputed lands cannot
be accepted. [Para 92] [537-8-H; 538-A-E]
7.2 The High Court in the impugned judgment, gave
a finding that the authorities under the Act have violated E
the principles of natural justice in not issuing notice to
the owners. of the lands in dispute before taking any
action under the Act. 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 F
material was produced by the petitioners in support of
their assertion made in the writ petition. Though, this
assertion was denied by the re~pondents in their counter
affidavit filed before the Court, this issue is answered by
the High Court in favour of the contesting respondents. G
The findings and conclusion reached by the High Court
in this regard, cannot be accepted. [Para 93] [538-E-G]
Effect of acquisition and distribution of the Evacuee
Property under the Displaced Persons (Compensation
and Rehabilitation) Act, 1954: H
484 SUPREME COURT REPORTS [2011) 7 S.C.R.
A 8.1 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
B 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 in itself in the
matter of dealing with evacuee property. The question
whether any property or right or interest in any property
c is or is not evacuee property can be adjudicated only by
the custodian and not the civil courts. 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
0
justice before notifying a property an evacuee property.
[Para 102) [541-C-E; 542-C]
8.2 The Displaced Persons Act provides for payment
of compensation and rehabilitation grants to displaced
E persons and for matters connected therewith. Section 12
of the Act authorizes the Central Government to acquire
the evacuee property for rehabilitation of the displaced
persons if it so desires and on such acquisition the
property shall vest absolutely in the Central Government
F 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
G Custodian under Evacuee Property Act. As soon as the
Notification is published, property ceases to be evacuee
property. [Paras 103 and 106) [542-D; 523-B-D]
Major Gopal Singh and Ors. vs. Custodian, Evacuee
Property.Punjab (1962) 1 SCR 328; Basant Ram vs. Union
H
SHANKARA CO-OP HOUSING SOCIETY LTD. v. M. 485
PRABHAKAR & ORS.
of India (1962) Supp. 2 SCR 733; Dafedar Niranjan Singh A
and Anr. vs. Custodian, Evacuee Property (Pb.) and Anr.
(1962) 1 SCR 214; Abdu/Majid Hazi Mohammed vs. P.R.
Nayak AIR 1951 Bombay 440; Dr. Zafar Ali Shah and Ors.
v:s. The Assistant Custodian of Evacuee Property (1962) 1
SCR749; Ebrahim Aboobaker vs. Tek Chand Dolwani (1953) B
SCR 691; Nasir Ahmed vs. Assistant Custodian General,
EvacueeProperty, U.P. Lucknow and Anr. (1980) 3 SCR 248;
Haji Siddik Haji Umar and Others. vs. Union of India (1983)
1 sec 408: 1983 (2) SCR 249 - refer~ed to.
9.1 Section 24 of the Displaced Persons Act gives C
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 hilnself as to legality or propriety of any order
passed therein and to pass such order in relation thereto D
as he thinks fit. The S.ection 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 E
Managing Corporation. A bare reading of the Section
shows that the ChiefSettlement Commissioner can revise
the order if in his opinion the orders passed by the .
officers named in the Section are either illegal or
improper. [Para 110] [545-F-H; 546-A] F
9.2 In the instant case, the Chief Settlement
Commissioner invoked his revisional powers at the
request of the allottees/displaced persons to revise the
proceedings and the order passed by the Collector-cum- G
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. What
the Chief Settlement· Commissioner can do' is only to
revise the orders passed by those officers who are H
486 SUPREME COURT REPORTS (2011] 7 S.C.R.
A 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. Therefore, the orders passed by the
Chief Settlement Commissioner in exercise of his
B revisional powers under the Displaced Persons Act is
without jurisdiction and non-est in law. [Para 110] [546-
B-D]
S. S. Batu and Anr. vs. State of Kera/a and Ors. (2009) 2
SCC 479: 2009 (1) SCR 196; New Delhi Municipal Council
c vs. Pan Singh and Ors. (2007) 9 SCC 278: 2007 (3) SCR
711; K. V. Raja/akshmiah Setty and Anr. vs. State of Mysore
and Anr. (1967) 2 SCR 70; Thakore Sobhey Singh vs. Thakur
Jai Singh and Ors. (1968) 2 SCR 848; Mohan /al Goenka vs.
Beney Krishan Mukher Jee and Ors. (1953) SCR 377;
D Shashivraj Gopalji vs. Ed. Appakath Ayissa and Ors. 1949 PC
302 - referred to.
Case Law Refnrence:
2008 (16) SCR 28 Referred to. Paras 27, 50
E
2009 (1) SCR 196 Referred to. Para 27
2007 (3) SCR 711 Referred to. Para 27
(1967) 2 SCR 70 Referred to. Para 27
F Para 28
(1968) 2 SCR 848 Referred to.
(1953) SCR 377 Referred to. Para 28
1949 PC 302 Referred to. Para 28
G 2003 (2) Suppl. SCR 290 Referred to. Para 29, 79, 82
2004 (3) SCR 250 Referred to. Para 29, 79, 83
2005 (2) SCR 1183 Referred to. Para 29, 79, 84
(1962) 1 SCR 328 Referred to. Para 30, 94, 95
H
SHANKARA CO-OP HOUSING SOCIETY LTD. v. M. 487
PRABHAKAR & ORS.
(1962) Supp. 2 SCR 733 Referred to. Para 30, 94, 96 A
(1962) 1 SCR 214 Referred to. Para 30, 94
(1874) 5 PC 221 Referred to. Para 46
AIR 1967 SC 1450 Referred to. Para 46
B
1969 SCR 808 Referred to. Para 46
1975 (2) SCR 960 Referred to. Para 47
1995 (1) Suppl. SCR 492Referred .to. Para 48
c
2007 (1) SCR 1127 Referred to. Para 49
1987 (1) SCR 1 Referred to. Para 51
1992 (2) SCR 155 Referred to. Para 52
(2002) 2 sec 48 Referred to. Para 61 D
2007 (13) SCR 145 Referred to. Para 65
2007 (5) SCR 107 Referred to. Para 66
(2003) 11 sec 21 o Referred to. Para 67 E
(2002) 2 sec 475 Referred to. Para 68
2008 (1) SCR 213 Referred to. Para 69
2007 (3) SCR 726 Referred to. Para 70
F
2009 (3) sec 634 Referred to. Para 73
1991 (3) SCR 465 Referred to. Para 75
(1962) 1 SCR 574 Referred to. Para 76
G
1979 (3) SCR 399 Referred to. Para 76
1965 SCR 686 Referred to. Para 77
(1967) 2 SCR 625. Referred to. Para 79, 85
(1969) 3 sec 769 Referred to. Para 79, 86 H
488 SUPREME COURT REPORTS [2011] 7 S.C.R.
A (1971) 3 sec 792 Referred to. Para 79, 87
(2004) 3 sec 553 Referred to. Para 79, 88
(1967) 3 SCR 736 Relied on. Para 90
AIR 1951 Bombay 440 Referred to. Para 97
B
(1962) 1 SCR 749 Referred to. Para 98
(1953) SCR 691 Referred to. Para 99
(1980) 3 SCR 248 Referred to. Para 100
c
1983 (2) SCR 249 Referred to. Para 106
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4099 of 2000.
From the Judgment & Order dated 27.4.2000 of the High
D
Court of Judicature, Andhra Pradesh at Hyderabad in Writ
Petitio No. 17722 of 1990
WITH
E C.A. Nos. 4101, 4100, 3949 of 2011.
P.S. Narasimha, Ranjit Kumar, L. Nageswara Roa, C.
Mukund, Avneesh Garg, P.V. Saravanaraja, Firdouse Outb
Wani, Jayant Mohan, Pankaj Jain, Bijoy Kumar Jain, C.K.
Sucharita, Nirada Das, T.V. Ratnam, Ramesh N. Keshwani,
F Ram Lal Roy, Shishir Pinaki, C. Satyanarayana Reddy, S.
Ashok Reddy, C.S.N. Mohan Rao, Asha G. Nair, T.V. Ratnam,
Farrukh Rasheek, V.N. Raghupathy, Lawyers' Knit & Co., M.
Srinivas R Rao, Abid Ali Beeran P., John Mathew, P. Venkat
Reddy, B. Ramamurthy, T. Anamika, D.N. Ray, Lokesh K.
G Choudhary, Sumita Ray, D. Bharathi Reddy, Neeru Vaid for the
appearing parties.
The Judgment of the Court was delivered by
H.L. DATTU, J.1. We grant leave in the special leave
H petition filed by the State of Andhra Pradesh.
SHANKARA CO-OP HOUSING SOCIETY LTD. v. M. 489
PRABHAKAR & ORS. [H.L. DATTU, J.]
2. In these civil appeals, we are required to consider A
essentially the erstwhile legislations with regard to the
administration of property left behind in India by ev~cuees
migrated to..,,Pa.kis,an !;!µring_ part.it.ion and. th.e. coryipe11sat9ry
redistribution of the same amongst those persons who had
migrated from Pakistan, leaving behind their property, at the B
time of partition.
3. The subject matter are ttie 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 C
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 D
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. E
The Stat~ 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 F
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, G
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 H
490 SUPREME COURT REPORTS [2011] 7 S.C.R.
A 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
B 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,
C 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"
D 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
E 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
F 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
G and Collector issued a Notification No.55, in NO CE/4064 to
4080 dated 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
H
SHANKARA CO-OP HOUSING SOCIETY LTD. v. M. 491
PRABHAKAR & ORS. [H.L. DATTU, J.]
in the Revenue Records. After such declaration, the Central A
Government has acquired the "disputed lands" by issuing
notification under Se.ction 12 of the Displaced Persons Act for
the rehabilitation of the persons who were displaced during the
partition.
B
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 1he 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 C
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 repres~ntations and petitions in furtherance
of their claim. D
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 E
· 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/ F
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 G
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 H
492 SUPREME COURT REPORTS [2011] 7 S.C.R.
A 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 Gener~I. Ja.is~lmer Hc;iuse, N~w Delhi.JP r.evise the
notification dated 11.12 .1952 ·declaring the' disputed lands as
B 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
C provisions of the Evacuee Property Act. The order p~ssed 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
D 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
E 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
F
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."
G
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
H
SHANKARA CO-OP HOUSING SOCIETY LTD. v. M. 493
PRABHAKAR & ORS. [H.L. DATTU, J.]
Rights) were also issued to them and their names were A ·
recorded in the revenue records.
13.'. Af> .we have already n<;>ticed, some of the legal
representative• of late Manda! Bucham had approached the
Deputy Custodian General, New De!hi by filing a revision B
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 C
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 D
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 vide order dated
28.05.1979 came to the conclusion that since there were no
records available to the contrary, Shri. Manda! Bucham and the E
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 F
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 G
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 H
494 SUPREME COURT REPORTS [2011] 7 S.C.R.
A 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. 55 in NO CE/
4064 to 4080 of 1952, the disputed lands are evacuee
B 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
C 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
D 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
E 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
F requesting the High Court to issue a writ or order directing the
Commissioner, Survey Settlement and Land 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
G 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
H writ petition was sought to be amended to include a prayer to
OSHANKARA CO-OP HOU~ING
SOCIETY LTD. v. M. 495
PRABHAKAR & ORS. [H.L. DATTU, J.]
quash the Notification No. 55 in NO CE 4064 to 4080 dated A
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.
B
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 C
Evacuee Property dated 28.07.1979. Aggrieved by the
Judgment 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 D
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 E
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 F
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 G
6n, admeasuring about 20.27 acres. These lands were
originally allotted to Sm!. 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. During the pendency
of the appeal, Sm!. Eswari Bai expired. The application filed H
496 SUPREME COURT REPORTS [2011) 7 S.C.R.
A by Thakur Hadanani to bring legal representatives of Smt.
Eswari bai was dismissed by this Court vide its order dated
30.03.201 O 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-ln-
B 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
C 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
D the entire sale consideration. It is asserted that the Society, after
obtaining permission from the cc'1'1petent authorities, has
allotted residential plots carved out of the "disputed lands" to
its members.
E 24. We have heard Shri. P.S. Narasimha, learned senior
counsel and Shri. C. Mukund, learned counsel for the appellants
and Shri. Ranjit 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.
F 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
G 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
H of the respondents is barred by principles of constructive
SHAN KARA CO-OP HOUSING SOCIETY LTD. v. M. 497
PRABHAKAR & ORS. [H.L. DATIU, J.]
Resjudicata since in the writ petition filed by the respondents A
before Andhra Prades.h High Court, the plea of non-service of
notice oh 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 B
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,
c
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 D
competent authority under the Eyacuee Property .A~t had not
only issued the individual n()tices 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 E
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 F
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 was to set aside the action of the G
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 outthat there was no averment in the writ
petition filed in the year 1966 regarding non-service of the H
498 SUPREME COURT REPORTS [2011] 7 S.C.R.
A 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
B the lands as evacuee property. He then referred to the counter
affidavit filed by the State Government bsfore 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
c 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. Muk.und
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
0
any steps from the time the notice 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
E 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
F 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.
27. The learned counsel further submits that a person who
G 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
H in the body of the petition. An excuse that the contesting
SHANKARA CO-OP HOUSING SOCIETY LTD. v. M. 499
PRABHAKAR & ORS. [H.L. DATIU, J.]
respondents were making repeated representations before A
various forums cannot merit serious consideration. In aid of his
submission, the learned counsel has invited our attention to the
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. Batu and B
Another Vs. State of Kera/a and others (2009) 2 SCC
479(Para 17), New Delhi Municipal Council Vs. Pan Singh and
others (2007) 9 sec 278 (paras 17-18) and K. v.
Rajalakshmiah Setty & Anr. Vs. State of Mysore and Anr.
(1967) 2 SCR 70. C
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 D
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 nothave been permitted E
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 Thakore Sobhey Singh Vs. Thakur Jai Singh and F
others (1968) 2 SCR 848, Mohan /al 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 G
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
H
500 SUPREME COURT REPORTS [2011) 7 S.C.R.
A 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
B 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 Kamataka
State Industrial Investment and Development Corporation Ltd.
c Vs. Cava/et 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
D 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
E 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
F 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.
G Custodian Evacuee Property (1962) 1 SCR 328, Basant Ram
Vs. Union of India (1962) Supp. 2 SCR 733 and Defedar
Niranja_n Singh and another Vs. Custodian Evacuee Property
and another (1962) 1 SCR 214.
31. Shri Mukund assails the judgment and order of the High
H
SHANKARA CO-OP HOUSING SOCIETY LTD. v. M. 501
PRABHAKAR & ORS.,,[H.L. DATTU, J.]
Court as perverse on the ground: (a) that the High Court has A
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 B
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-serv.ice of notice,
c
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) ofSectiori 7 of the Evacuee Property Act. D
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 E
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 F
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/ G
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 H \
502 SUPREME COURT REPORTS [2011] 7 S.C.R.
A 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
B 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.
c 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
D 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
·E 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
F 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 ouf that the revenue records would clearly prove that it
is the Custodian who was the owner and in possession of the
G 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,
H
JHANKARA CO-OP HOUSING SOCIETY LTD. v. M. 503
PRABHAKAR & ORS. [H.L DATTU, J.]
submitted that though late Rahim Baksh Khan had a money A
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
agai~st the disputed lands in favour of late Rahim Baksh Khan.
He submits that there is nothing on record to show how the B
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 C
the lands in questionwere 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
0
by the Government, in its counter affidavit.
36. With regard to the question of delay an~ laches which
was the forefront of the submission of Shri. Mukund, learned
counsel, he submits that the contesting respondents, who \fl/ere E
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 F
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 G
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
_H
504 SUPREME COURT REPORTS [2011) 7 S.C.R.
A 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
8 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
C 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
D 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
E 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.
F 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
G 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
H jurisdiction.
SHANKARA CO-OP HOUSING SOCIETY LTD. v. M. 505
PRABHAKAR & ORS. [H.L. DATIU, J.]
40. Shri. Ranjit Kumar rebuts the claim of the appellants A
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 B
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, c
by stating that a writ petition under Article 226 was the only
remedy available, as Section 36 of the 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 0
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 E
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 F
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 G
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 the substitution of the legal heirs of Smt.
H
506 SUPREME COURT REPORTS [2011) 7 S.C.R.
A 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
8 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
C 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
D 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
E 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 correct any manifest
illegality, such as declaring the disputed lands as evacuee
property, under its writ jurisdiction, which need not be interfered
F with by this Court under Article 1~6; 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
G 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
H court, this court need not interfere with the said order.
SHANKARA CO-OP HOUSING SOCIETY LTD. v. M. 507
PRABHAKAR & ORS. [H.L. DATIU, J.]
43. Shri. L. Nageshwar Rao, learned senior counsel who A
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 s
were not gone into by the High Court, there could be no decision
on this aspect, and once this aspect was decided 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 C
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 D
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 E
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. F
(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 G
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 H
508 SUPREME COURT REPORTS [2011] 7 S.C.R.
A Article 226 of the Constitution of India. In an appropriate case,
the High Court may refuse to invoke its extraordinary power~ 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
B 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. Ba/want
Regular Motor SeNice AIR 1969 SC 329, has stated :-
c "Now the doctrine of !aches 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
D 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
E 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
F 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
G Court took the vi~w 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
H detriment of similar claims of innocent third persons."
SHANKARA CO-OP HOUSING SOCIETY LTD. v. M. 509
PRABHAKAR & ORS. [H.L. DATTU, J.]
48. In State of Maharashtra Vs. Digambar (1995) 4 SCC A
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."
B
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 C
unreasonable delay, it may have the effect of inflicting not only
hardship and inconvenienc~ but also injustice on third parties.
It wa's pointed out that when writ jurisdiction is invoked,
unexplained delay coupled with the creation of 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 D
jurisdiction."
50. In City and Industrial Development Corporation Vs.
Dosu Aardeshir Bhinandiwala and others (supra), this court
he~:- E
"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 F
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 G
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 H
510 SUPREME COURT REPORTS [2011) 7 S.C.R.
A 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 !aches 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
B High Court may still in the exercise of its discretion interfere
and 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.
c 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 Mis Dehri Rohtas Light Railway Company Ltd.
D 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
E 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
F !aches 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
G
that the lapse of time is not attributable to any !aches 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 !aches."
H
SHANKARA CO-OP HOUSING SOCIETY LTD. v. M. 511
PRABHAKAR & ORS. [H.L. DATTU, J.]
53. The relevant considerations, in determining whether A
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: (1) 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 B
sound and proper exercise of discretion, and each case must
be dealt with on its own facts. (2) 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 C'
the delay, because court should not harm innocent parties if
their rights had emerged by the delay on the part of the
petitioners. (3) 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
0
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. (4) No hard and
fast rule, can be laid down in this regard. Every case shall have E
to be decided on its own facts. (5) 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 F
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 G
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 H
512 SUPREME COURT REPORTS [2011] 7 S.C.R.
A 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-a/ia, claiming the relief of certiorari to
quash the action of the authorities for auction of the acquired
s lands under the Displaced Persons Act for grant of Ek saala .
lease, but, at the time of hearing of the 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
c 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
D 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 o:' 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
E 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
F 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 respondents ~uppressing the filing of the writ petition
and its dismissal, had filed a revision petition under Section
G 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
H order was revised by the Chief Settlement Commissioner at·
SHANKARA CO-OP HOUSING SOCIETY LTD. v. M. 513
PRABHAKAR & ORS. [H.L. DATTU, J.J
the instance of the allottees by his order dated 11.05.1983. The A
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 B
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 c
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 direction to
respondent No.3 to conduct an enquiry into the question of title
of disputed lands and.also the correctness of the declaration 0
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.
E
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 F
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 G
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 that if there is any H
514 SUPREME COURT REPORTS [2011) 7 S.C.R. '
A 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
B 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
c 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,
D 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
E 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
F 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,
G 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
H
JHANKARA CO-OP HOUSING SOCIETY LTD. v. M. 515
PRABHAKAR & ORS. [H.L. pATIU, J.)
very correctness of the proceedings treating the petitioners' A
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 B
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. C
The petitioners are seeking quashing the order 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 D
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."
E
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. F
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 G
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 regard
to the explanation offered by the petitioner in approaching the
Court, even according to them, nearly after 45 years. The High H
I
516 SUPREME COURT REPORTS [2011) 7 S.C.R.
A 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 tllle
8
Court to have specifically dealt with this issue. It is now well
settled that a person who seeks the inte.rvention 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
C 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
D 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
E 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 explanatio·n offered by the
respondents in approaching the writ court after an inordinate
delay of nearly 15 years from the date of the notification issued
F 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
G 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
H
SHANKARA CO-OP HOUSING SOCIETY LTD. v. M. 517
PRABHAKAR & ORS. [H.L. DATTU, J.]
petition was filed in the year 1990, it is explained that they had A
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 B
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, c
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 0
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 E
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 F
delay on the part of 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 G
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 H
518 SUPREME COURT REPORTS [2011] 7 S.C.R.
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
B 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
C 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
F 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
G 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
H knowledge of the notification issued under the Act, otherwise _
SHAN KARA CO-OP HOUSING SOCIETY LTD. v. M. 519
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
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 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 F
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 G
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
520 SUPREME COURT REPORTS [2011) 7 S.C.R.
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]
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.
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,
E
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
F 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
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:
H "25. The question still remains whether, on facts of this
SHANKARA CO-OP HOUSING SOCIETY LTD. v. M. 521
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 E
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 F
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
522 SUPREME COURT REPORTS [2011] 7 S.C.R.
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."
E 69. 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
F 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
G 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
H independent writ petition. This Court further held:
SHANKARA CO-OP HOUSING SOCIETY LTD. v. M. 523
PRABHAKAR & ORS. [H.L. DATTU, J.]
"13. The High Court, therefore, erred in issuing a writ of A
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 B
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."
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: 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
524 SUPREME COURT REPORTS [2011] 7 S.C.R.
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
72. 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
SHANKARA CO-OP HOUSING SOCIETY LTD. v. M. 525
PRABHAKAR & ORS. [H.L. DATIU, J.]
aside the order passed by Collector-cum-Deputy Custodian as A
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 B
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".
73. 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 F
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 G
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
526 SUPREME COURT REPORTS [2011] 7 S.C.R.
A 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
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
C 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
D 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
F 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
G 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,
H therefore, they could not have reagitated the correctness or
SHANKARA CO-OP HOUSING SOCIETY LTD. v. M. 527
PRABHAKAR & ORS. [H.L. DATTU, J.]
otherwise of the notification dated 11.12.1952 issued under A
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
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 C
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 D
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 E
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. The same view was F
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 G
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
528 SUPREME COURT REPORTS (2011] 7 S.C.R.
A 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
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
C 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
D 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.
77. 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
F 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
G 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
SHANKARA CO-OP HOUSING SOCIETY LTD. v. M. 529
PRABHAKAR & ORS. [H.L. DATTU, J.]
78. 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.
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 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 ·
530 SUPREME COURT REPORTS [2011] 7 S.C.R.
A Corporation of India Ltd. and Ors. (2004) 3 sec 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
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
C 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,
D 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.
E 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
F 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
G 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
H justice.
SHANKARA CO-OP HOUSING SOCIETY LTD. v. M. 531
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 C
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 D
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 E
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.
A 84. 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
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 :-
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
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
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
SHANKARA CO-OP HOUSING SOCIETY LTD. v. M. 533
PRABHAKAR & dRS. [H.L. DATIU, J.]
issues both offact and law. Exercise of the jurisdiction is, A
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 B
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 :-
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 D
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 E
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 F
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 :- 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
534 SUPREME COURT REPORTS [2011] 7 S.C.R.
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
D 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
E 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
F 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
G
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
SHANKARA CO-OP HOUSING SOCIETY LTD. v. M. 535
PRABHAKAR & ORS. [H.L. DATIU, J.]
90. 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
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 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
536 SUPREME COURT REPORTS [2011] 7 S.C.R.
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
E 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
F 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
SHAN KARA CO-OP HOUSING SOCIETY LTD. v. M. 537
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
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 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
538 SUPREME COURT REPORTS [2011) 7 S.C.R.
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
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.
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.
94. Re : Effect of acquisition and Distribution of the
H
SHANKARA CO-OP HOUSING SOCIETY LTD. v. M. 539
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.
95. 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."
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 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
540 SUPREME COURT REPORTS [2011] 7 S.C.R.
A 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
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.
98. 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
E 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
F 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
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
SHANKARA CO-OP HOUSING SOCIETY LTD. v. M. 541
PRABHAKAR & ORS. [H.L. DATTU, J.]
possession or otherwise that the property was prima-facie A
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 8
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 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 E
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 F
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
542 SUPREME COURT REPORTS [2011] 7 S.C.R.
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.
103. The Displaced Persons Act provides for payment of
D 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
E 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
F 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:
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
SHANKARA CO-OP HOUSING SOCIETY LTD. v. M. 543
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
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 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
544 SUPREME COURT REPORTS [2011] 7 S.C.R.
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
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-
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
D 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
E 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
F 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
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
H
SHANKARA CO-OP HOUSING SOCIETY LTD. v. M. 545
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.
108. 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.
109. 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
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 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
546 SUPREME COURT REPORTS [2011) 7 S.C.R.
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.
E 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
F 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
G 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
SHAN KARA CO-OP HOUSING SOCIETY LTD. v. M. 547
PRABHAKAR & ORS. [H.L. DATTU, J.]
respect of an issue concluded between the parties A
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 B
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.
112. 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 27.04.2000 is set aside. Costs are
made easy.
N.J. Appeals allowed.
G
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