vil Appeal No 601213 of 1983
From the Judgment and Order dated 3111983 of the Punjab  Haryana High Court in CRSA No 1871 of 1975 and RSA No 16 11 of 1980
Shiv Dayal Srivastava SK Bagga and Mrs Bagga for the Appellant
Kapil Sibal section Markandeya Mrs C Markandeya OP Ahluwalia G Seshagiri Rao and Km
U Saraswat for the Respondents
The Judgment of the Court was delivered by OZA J
This appeal arises out of a judgment of the Punjab  Haryana High Court delivered in Civil Regular Second Appeal No 187 1 of 1975 dated 31121983
This second appeal before the High Court of Punjab  Haryana was taken against the judgment of Additional Dis trict Judge Patiala 386 who affirming the judgment of the trial Court ie sub Judge 1st class Rajpura maintained the dismissal of the suit filed by the plaintiffpresent appellant
The suit was filed for a declaration that the appellant plaintiff is the owner in possession of agricultural lands measuring 100 Bighas 10 Biswas comprising Khasra Nos
54 1 2 3 83 9 11 192 55 3 4 5 67 15 5516 20 situated in village Urdan Tehsil Rajpura with the consequential relief of permanent injunction restraining the defendant from interfering with the possession of the plaintiff and dispossession thereof in any manner
The appellant Pujari Bai it is alleged migrated from Pakistan in 1947 after the partition of the country and she left behind in Pakistan a large areas of agricultural land
In 1949 Government in order to settle such refugees adopted certain measures and gave land to the displaced persons for the purpose of cultivation
The displaced persons claims were examined by the claims organisation set up by the East Punjab Government at some places and the lands were given individually to those who had left behind agricultural lands in the West Punjab which become Pakistan after 1947
As Smt
Pujari Bai was one of such claimants she was allotted certain lands in village Urdan
On 29121962 allotment made was quasi permanent in character but on 2941963 the lands were transferred to her permanently
The transfer was right title and interest in ownership by a Sanad issued in the name of the President the Central Government under Rule 69 of the Displaced Persons Compensation  Rehabilitation Rules 1954
This was the basis of her claim
It appears that the defendant respondent had also migrated from Pakistan like the appellant and on 29121959 some lands were also allotted to him but no entry could be made in the revenue record and it was not certain whether possession was taken by the respondent
On 2961960 during the consolidation proceedings no tuk was however made for the respondent
He filed objections and to these objections Pujari Bai was not a party
The objections were rejected
It appears that against this order he appealed to the Appellate Authority The Settlement Officer Appeals and this appeal also was dismissed
He took up the matter in second appeal to the Assistant Director Consolidation of Holdings who remanded the matter to the Special Settlement Officer with certain observations
He observed that there have been over allotment and authorities will see that first allottee is given land first
He also observed that it all happened 387 because of the mistake of the Consolidation authorities
This order was passed on 2121963
In spite of this remand order made by the Assistant Director Consolidation nothing happened for about three years
In 1966 the respondent filed a writ petition before the High Court of Punjab  Haryana
Even to this writ peti tion the present appellant Pujari Bai was not a party
In this writ petition a direction was sought to implement the aforesaid order of the Assistant Director Consolidation
The High Court by the order dated 25111966 directed that the observations contained in the order passed by the Assistant Director should be complied with
After the direction of the High Court the Consolidation Officer became active
He started enforcing the observations contained in the remand order of the Assistant Director and in so doing he found that the land allotted to various persons in the village was more than the land available for allotment
In order to resolve this difficulty he evolved a via media
He deprived some of the allottees of the part of land allotted to them and the appellant was one such casu alty
He allotted all such lands to the respondent and it is this which was the starting point of the trouble
It is however significant to note that before this order was passed by the Consolidation Officer so far as the appellant is concerned she had already obtained a permanent Sanad in respect of her lands from the Government of India
Against the order of the Consolidation Officer the appellant preferred an appeal before the Assistant Director Punjab  Haryana Chandigarh
The appeal was dismissed with an observation that he was bound by the remand order and the right acquired by the appellant by the Sanad should have been brought to the notice when matter was disposed of earlier by the Assistant Director Patiala
Against this order of the Assistant Director the appellant preferred a writ petition which was rejected by the High Court in limine with one word dismissed  by order dated 1441969
After the rejection of the writ petition the appellant had no other alternative and therefore instituted the suit out of which this appeal arises
Her case in the suit was that it was impermissible for the Consolidation Officer to adjust the lands or take away any part of it which became her absolute property by virtue of the Sanad granted on 2941963
However she became unsuccessful in all Courts
On 591975 the trial Court dismissed the suit
The Addi tional District 388 Judge confirmed that judgment
The High Court of Punjab  Haryana dismissed the Second Appeal by the judgment dated 3111983 which is now under appeal before us
Learned counsel for the appellant contended that after the Sanad was granted to the appellant on 2941963 she became the absolute owner of the land
The land was given to her in lieu of settlement of her claim of compensation and the Sanad specifically provided that all rights and interest in the property were transferred to the appellant under the authority of the President
It was therefore not open to any consolidation authority to cancel this Sanad
It was also contended that the Consolidation authorities and the civil courts did not examine the legal consequences of the Sanad and the scope of Section 10 and without taking that into consideration the allotment made was illegal and could not be sustained
The other limb of the argument of learned counsel re lates to the question of res judicata on which ground also the appellant was nonsuited
It may be recalled the appel lant being aggrieved by the order of the Consolidation Officer which was confirmed by the Assistant Director Con solidation approached the High Court in a writ petition
That writ petition was rejected in limine and therefore the courts below held that the question of res judicata operates and there was no scope for the civil court to go into the question once again
It was argued that the High Court committed an error since apparently the writ petition filed by the appellant was dismissed in limine and it could not operate as res judicata since it was not a decision on merits deciding anyone of the issues arising in the litiga tion
Learned counsel for the respondent on the other hand contended that the allotment made in favour of the respond ent was very much before the allotment made in favour of the appellant
The allotment to the respondent was on 29121959 and whereas the allotment to the appellant was on 29121962
But unfortunately as there was no entry made in the revenue record about the allotment tO the respondent
No land was earmarked in the consolidation proceedings which ultimately had to be brought to the notice of Assistant Director
The later remanded the matter with a direction to the consolidation officer to see that the first allottee is accommodated first and the later allottees who have been accommodated before the respondent shall not be given their allotment
 Learned counsel contended that when this order of the Assistant Director was not complied with the re spondent had no option but to approach the High Court for a direction for 389 enforcement of the said order
But learned counsel had to concede that even before the order of the Assistant Director by which he remanded the matter the allotment in favour of the appellant had been converted into a permanent transfer by a Sanad granted by the President
The main argument of the learned counsel for the re spondent was that in view of the fact that the respondent was allotted earlier in 1959 whereas the allotment in favour of the appellant being in December 1962 and if there was no adequate land available for allotment to the appellant the authorities should find an alternative land somewhere else but the respondent could not be deprived of the land which was allotted to him He however frankly conceded that there is nothing on record to indicate that the same land which was allotted to the respondent was allotted to the appellant
He however said that it was a case of over allotment and the authorities were justified in taking the land proportionately from all allottees and adjusting all the allottees with the available lands
From all the facts and documents one thing appears to be clear that although certain allotment was made in favour of the respondent in 2959 he was not put in possession of the allotted lands
It is also clear that the survey Nos of lands allotted in 1959 to the respondent are not the same survey Nos
allotted to the appellant in December 1962
It is further clear that the appellant was given possession of those properties allotted to her and even permanent Sanad was granted to her
The main question that arises for consideration there fore is whether the lands given to the appellants by perma nent Sanad could be deprived of in the consolidation pro ceedings without giving them adequate alternate lands
Section 10 of the Displaced Persons Compensation  Rehabil itation Act of 1954 provides 10
Where any immovable property has been leased or allotted to a displaced person by the Custodian under the conditions prescribed a by the notification of the Government of Punjab in the Department of Rehabilitation No 4891 S or 4892 S dated the 8th July 1949 or b by the notification of the Government of Patiala and 390 East Punjab States Union in the Department of Rehabilitation No 8R or 9R dated the 23rd July 1949 and published in the Official Gazette of that State dated the 7th August 1949
and such property is acquired under the provi sions of this Act and forms part of the com pensation pool the displaced person shall so long as the property remains vested in the Central Government continue in possession of such property on the same conditions on which he held the property immediately before the date of the acquisition and the Central Government may for the purpose of payment of compensation to such displaced person trans fer to him such property on such terms and conditions as may be prescribed
 From this provisions it will be clear that the parties who were put in possession under initial allotment would continue to remain in possession even after its acquisition by the Central Government
But it is open to the Central Government for the purposes of payment of compensation to such displaced persons transfer to him such property on such terms and conditions as may be prescribed
Apparently this refers to a permanent transfer in lieu of compensation
It is not in dispute that the appellants were the only allot tees in whose favour permanent transfer was made on 2941963 and 1561964 respectively
A perusal of the terms of Sanad clearly indicate that it conveys absolute title and it could be cancelled only by the authority which granted the Sanad
Sanad exhibit p 2 granted to the appellant on 2941963 reads The President is hereby pleased to transfer the right title and interest acquired by the Central Government in the said property to Pujari Bai wife of Bihari Lal hereinafter referred to as the transferee subject to the following terms and conditions
 It was perhaps for this reason as contended for the appellant that after the Sanad was granted in favour of the appellant the respondent went on with the proceedings before the consolidation authorities and also before the authorities under the Displaced Persons Compensation  Rehabilitation Act 1964 but did not implead the appellant and only impleaded the other allottees who were not granted Sanad till 391 then
Quite naturally the authorities had no opportunity to examine the effects of the Sanad granted to the appellant
Learned counsel for the respondent next contended that the consolidation proceedings had started when the Sanad was granted to the appellant on 2941963 and Section 30 of the East Punjab Holdings Consolidation and Prevention of Frag mentation Act 1948 prohibits a transfer during the consol idation proceedings
We do not think that Section 30 has any application to the facts of the case
Section 30 of the East Punjab Holdings Consolidation and Prevention of Fragmentation Act 1948 provides Sec 30
Transfer of Property during consoli dation proceedings After a notification under sub section 1 of Section 14 has issued and during the pendency of the consolidation proceedings no land owner or tenant having a fight of occupancy upon whom the scheme will be binding shall have power without the sanc tion of the Consolidation Officer to transfer or otherwise deal with any portion of his original holding or other tenancy so as to affect the rights of any other landowner or tenant having a right of occupancy therein under the scheme of consolidation
 Transfer of property referred to in this Section is either by a landowner or by a tenant and it has no refer ence and indeed cannot have a reference to transfer of Sanad under Section 10 of the Displaced Persons Compensation  Rehabilitation Act of 1954
The conferment of fights in lieu of compensation under Section 10 stands on a different footing which could not be contemplated within the language of Section 30 of the aforesaid Act
This contention advanced by learned counsel for the respondent is therefore reject ed
This takes us to the question of res judicata
The question is whether the suit of the appellant was barred by res judicata in view of the summary dismissal of her writ petition earlier
It is not disputed that the writ petition filed by the appellant against the order of the Assistant Consolidation Officer was dismissed in limine
This order dated 1441969 was passed by the Division Bench of Punjab  Haryana High Court
It was a one word order
The question or res 392 judicata apparently arises when a controversy or an issue between the parties has been heard and decided
This Court in Workmen of Cochin Port Trust vs Board of Trustees of the Cochin Port Trust  Another 1 considered this principle and observed at 977 But the technical rule of res judicata al though a wholesome rule based upon public policy cannot be stretched too far to bar the trial of identical issues in a separate pro ceedings merely on an uncertain assumption that the issues must have been decided
It is not safe to extend the principle of res judi cata to such an extent so as to found it on mere guess work
To illustrate our view point we may take an example
Suppose a writ peti tion is filed in a High Court for grant of a writ of Certiorari to challenge some order or decision on several grounds
If the Writ Petition is dismissed after contest by a speaking order obviously it will operate as res judicata in any other proceeding such as of suit Article 32 of Article 136 directed from the same order or decision
If the Writ Petition is dismissed by a speaking order either at the threshold or after contest say only on the ground of laches or the availabil ity of an alternative remedy then another remedy open in law either by way of suit or any other proceeding obviously will not be barred on the principle of res judicata
 It thus becomes clear that when a writ petition after contest is disposed of an merits by a speaking order the question decided in that petition would operate as res judicata but not a dismissal in limine or dismissal on the ground of laches or availability of alternative remedy
The High Court and the courts below therefore were not right in throwing out the suit of the appellant on the ground of res judicata
It is therefore plain that all the three courts have omitted to consider the material question that is the impact of the grant of Sanad under Section 10 and its effect on the jurisdiction of the authorities under the Consolida tion Act
The authorities under Consolidation Act have no jurisdiction or power to modify or cancel the grant of proprietary rights granted in the Sanad under Section 10
In the connected Civil Appeal No 6013 of 1983 the Sanad was also granted on 1561964 in accordance with Section 10 and therefore the same principle applies to that case also
393 The appeals are therefore allowed
The judgment and decree passed by all the three courts below are set aside and the suit filed in each case is decreed with costs
The appellant shall be entitled to costs in this Court
Costs quantified at Rs5000 in each of the two appeals
NVK Appeals allowed


Summary:
By way of writ petition under Article 32 of the Consti tution the petitioners sought relief against the imposition of customs duty at 150 per cent on their import of edible oils into India
Pursuant to the contract entered into by the petitioners with foreign sellers for the supply of edible oils the consignment of edible oils was sent by the ocean going vessel MV Kotta Ratu
The vessel approached Bombay and made its prior entry on 4 July 1981
It actu ally arrived and registered on 11 July 1981
As the port authorities at Bombay were unable to allot a berth to the vessel the vessel left for Karachi for unloading other cargo intended for that port
The vessel returned on 23 July 1981 and waited for berth
On August 4 1981 she was allowed to berth in Princess Docks C  shed and the Customs authori ties made the final entry on that date
Customs authorities are stated to have imposed duty on the import of edible oil at the rate of 150 per cent on the footing that the import was made on 31 July 1981 the date of Inward Entry
The case of the petitioners was that the rate of duty leviable on the imports should be that ruling on 11 July 1981 when the vessel actually arrived and registered in the Port Bombay and that but for the fact that berth was not available the vessel would have discharged its cargo at Bombay and would have been liable to pay customs duty at the rate of 125 which was the ruling rate on that date ie 11 July 1981
The petitioners contended that the rate should not have been more than 425 because that was the rate of customs duty ruling on 23 July 1981 when the vessel entered the port of Bombay
The Court rejecting the claim of petitioners 368 HELD The rate of duty and tariff valuation has to be determined in accordance with section 151 of the Customs Act
Under section 151a the rate and valuation is the rate and valuation in force on the date on which the Bill of Entry is presented us 46
According to the proviso however if the Bill of Entry has been presented before the entry inwards of the vessel by which the goods are imported the Bill of Entry shall be deemed to have been presented on the date of such entry inwards
373B C The date on which a Bill Entry is presented under section 46 is in the case of goods entered for home consumption the date relevant for determining the rate of duty and tariff valuation
Where the Bill of Entry is presented before the date of Entry Inwards of the Vessel the Bill of Entry is deemed to have been presented on the date of such Entry Inwards
375B The amendment made in section 16 of the Act appears to have been made by way of clarification and does not detract from the conclusion that the date of entry inwards of the ves sel is the date recorded as such in the Customs register
375F In the present case the date of inwards entry is mentioned as 31st July 1981
In the absence of anything else it may be taken that the entry was recorded on that date itself
Accordingly the rate of import duty and the tariff valuation shall be that in force on 31st July 1981
The contention of the petitioners that the rate of import duty and tariff valuation will be that ruling on July 11 1981 cannot be sustained and is rejected
375G 1Shawney vs Ms Sylvania  Laxman Ltd 77 Bom
LR 380 2 Apar Private Ltd  Ors
vs Union of India  Ors 185  3 Jain Shudh Vanaspati Ltd vs SR Patankar Asstt
Collector of Customs Bombay  Ors  4 Ms
Omega Insulated Cable Co India Ltd vs The Collector of Customs Madras approved
Writ Appeal No 537 of 1969 decided by the Hon ble Kailasam and Paul JJ
on 9 July 1975 referred to