Case: State Of Orissa Vs. Ram Chandra Dev &amp; Anr

the jurisdiction of the High Court under Art. 226 to issue a writ solely for the purpose of granting an interim relief to the party who moved the High Court under Art. 226. It is in that connection that this Court observed that an interim relief can be granted only in aid of and as auxiliary to the main relief which may be available to the party on final determination of his rights in a suit or proceedings under Art., 226. It would thus be noticed that when the Orissa High Court purported to issue a writ under Art. 226 in favour of the grantees of the mining leases issued in their favour by the Ruler of Keonjhar and gave them adequate relief by issuing a writ without deciding the question of title, this Court corrected the error and set aside the High Courts orders. In our opinion, what the High Court has done in the present cases is substantially similar to what had been done in the case of Madan Gopal Rungta, 1952 SCR 28 : (AIR 1952 SC 12 ). 11. As we have already observed, the High Court did not embark upon the enquiry as to title in the present proceedings, because that is a question which may be appropriately tried in a regular suit. In proceeding to issue a writ in favour of the respondents, the High Court, however, appears to have assumed that the appellant was not entitled to seek to recover possession of the properties after resuming the grants in question. Whether or not the grants in question are resumable, and if they are, whether or not the appellant can recover possession without filing a suit, are questions on which we propose to express no opinion in the present appeals. Ordinarily, where property has been granted by the State on conditions which make the grant resumable, after resumption it is the grantee who moves the Court for appropriate relief, and that proceeds on the basis that the grantor State which has reserved to itself the right to resume may, after exercising its right, seek to recover possession of the property without filing a suit. But apart from this aspect of the matter, it is difficult to see how the High Court was justified in issuing the writ in the present appeals the inevitable consequence of which would be that the respondents would remain in possession of the property until the appellant files a suit against them; and that, in our opinion, would not be justified unless questions of title are determined and it is held that the appellant must file a suit before the respondents can be dispossessed. It appears that in issuing the writ in favour of the respondents, the High Court failed to appreciate the legal effect of its conclusion that questions of title cannot be tried in writ proceedings. Once it is held that the question of title cannot be determined, it follows that no right can be postulated in favour of the respondents on the basis of which a writ can be issued in their favour under Art. 226. 12. Mr. Tatachari, however, has contended that the right on which the petitions of the respondents are founded is a right flowing from the respondents continuous possession of the properties for many years, and he argues that if such a right is proved, the High Court would be justified in issuing a writ protecting that right. This argument is clearly fallacious. Mere possession of the property for however long a period it may be, will not clothe the possessor with any legal right if it is shown that the possession is under a grant from the State which is resumable. Such long possession may give him a legal right to protect his possession against third parties, but as between the State and the grantee, possession of the grantee under a resumable grant cannot be said to confer any right on the grantee which would justify a claim for a writ under Art. 226 where the grant has been resumed. In dealing with this argument, we have assumed without deciding that though a suit under S. 9 of the Specific relief Act would have been incompetent against the appellant, a similar relief can be claimed by the respondents against the appellant under Art. 226. Even on that assumption, no right can be claimed by the respondents merely on the ground of their possession, unless their right to remain in possession is established against the appellant, and this can be done if the grant is held to be not resumable. 13. In support of his argument, Mr. Tatachari has referred us to three decisions in which appropriate relief was granted to the party in possession where his possession was sought to be disturbed by executive action-Kistareddy v. Commissioner of City Police, Hyderabad, AIR 1952 Hyd 36; Mohinder Singh v. State of Pepsu AIR 1955, Pepsu 60 and Mrs. C. N. Lloyd v. District Council, United Khasi and Jaintia Hills. AIR 1960 Assam, 131. It appears that in all these cases, the question which the High Courts purported to decide was whether a person admittedly in possession can be dispossessed by executive action when such executive action is not founded on any law, and the decision proceeded on the provisions of Art 31 (1) of the Constitution. We do not wish to examine the question which these decisions have considered, because, in our opinion, possession of the respondents cannot be said to constitute any right against the appellant, having regard to the fact that the properties in question originally belonged to the appellant and had been granted by the appellant to the predecessors of the respondents, unless the effect of the terms of the grants is duly determined. That being so we must hold that the High Court was in error in issuing a writ against the appellant and in favour of the respondents in the writ petitions from which the two appeals arose.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]We have rejected Mr. Tatacharis request for adjournment because we are satisfied that no useful purpose would be served by granting the respondents any further time. The conduct of the respondents after time was given to them under the consent order delivered by this Court on October 10, 1962 does not justify the present request for further adjournment. That is why we proceeded to hear the appeals on the merits8. On the merits, the position is absolutely clear. Under Art. 226 of the Constitution, the jurisdiction of the High Court is undoubtedly very wide. Appropriate writs can be issued by the High Court under the said article even for purposes other than the enforcement of the fundamental rights and in that sense, a party who invokes the special jurisdiction of the High Court under Art. 226 is not confined to cases of illegal invasion of his fundamental rights alone. But though the jurisdiction of the High Court under Art. 226 is wide in that sense, the concluding words of the article clearly indicate that before a writ or an appropriate order can be issued in favour of a party, it must be established that the party has a right and the said right is illegally invaded or threatened. The existence of a right is thus the foundation of a petition under Art. 2269. In dealing with this question, it is necessary to recall that the High Court has refused to consider the controversy between the parties on the merits, and so, the respondents would not be entitled to rely on their case that by virtue of the grants made to their predecessors by the State, they have a proprietary interest in the properties in question. If that be so, it is difficult to see what right can be said to have been proved by the respondents to justify the issue of the writ11. As we have already observed, the High Court did not embark upon the enquiry as to title in the present proceedings, because that is a question which may be appropriately tried in a regular suit. In proceeding to issue a writ in favour of the respondents, the High Court, however, appears to have assumed that the appellant was not entitled to seek to recover possession of the properties after resuming the grants in question. Whether or not the grants in question are resumable, and if they are, whether or not the appellant can recover possession without filing a suit, are questions on which we propose to express no opinion in the present appeals. Ordinarily, where property has been granted by the State on conditions which make the grant resumable, after resumption it is the grantee who moves the Court for appropriate relief, and that proceeds on the basis that the grantor State which has reserved to itself the right to resume may, after exercising its right, seek to recover possession of the property without filing a suit. But apart from this aspect of the matter, it is difficult to see how the High Court was justified in issuing the writ in the present appeals the inevitable consequence of which would be that the respondents would remain in possession of the property until the appellant files a suit against them; and that, in our opinion, would not be justified unless questions of title are determined and it is held that the appellant must file a suit before the respondents can be dispossessed. It appears that in issuing the writ in favour of the respondents, the High Court failed to appreciate the legal effect of its conclusion that questions of title cannot be tried in writ proceedings. Once it is held that the question of title cannot be determined, it follows that no right can be postulated in favour of the respondents on the basis of which a writ can be issued in their favour under Art. 226This argument is clearly fallacious. Mere possession of the property for however long a period it may be, will not clothe the possessor with any legal right if it is shown that the possession is under a grant from the State which is resumable. Such long possession may give him a legal right to protect his possession against third parties, but as between the State and the grantee, possession of the grantee under a resumable grant cannot be said to confer any right on the grantee which would justify a claim for a writ under Art. 226 where the grant has been resumed. In dealing with this argument, we have assumed without deciding that though a suit under S. 9 of the Specific relief Act would have been incompetent against the appellant, a similar relief can be claimed by the respondents against the appellant under Art. 226. Even on that assumption, no right can be claimed by the respondents merely on the ground of their possession, unless their right to remain in possession is established against the appellant, and this can be done if the grant is held to be not resumableIt appears that in all these cases, the question which the High Courts purported to decide was whether a person admittedly in possession can be dispossessed by executive action when such executive action is not founded on any law, and the decision proceeded on the provisions of Art 31 (1) of the Constitution. We do not wish to examine the question which these decisions have considered, because, in our opinion, possession of the respondents cannot be said to constitute any right against the appellant, having regard to the fact that the properties in question originally belonged to the appellant and had been granted by the appellant to the predecessors of the respondents, unless the effect of the terms of the grants is duly determined. That being so we must hold that the High Court was in error in issuing a writ against the appellant and in favour of the respondents in the writ petitions from which the two appeals arose.