Case: KAIKHOSROU(CHICK) KAVASJI FRAMJI AND ANR Vs. UNION OF INDIA AND ANR

be, by filing civil suit in the Civil Court. The respondents cannot now be permitted to go back from their statement and take recourse to a remedy of summary procedure under the PP Act, which is otherwise not available to them. 69. Fourth, this Court while granting special leave to appeal on 03.08.2009 had also granted liberty to respondent No.1 (Union of India) to file civil suit against the appellants, if they are so advised. It was, however, not resorted to. 70. Fifth, the effect of quashing the resumption notice dated 21.01.1971 issued by the respondents by the High Court vide order dated 05.02.1979/06.02.1979 in relation to the suit property was that respondent No.1 (Union of India) was not entitled to resort to any kind of summary remedy to evict the appellants from the suit property not only under the Bombay Land Requisition Act, 1948 but also under the PP Act because the PP Act also provides similar summary remedy of eviction. 71. Sixth, the Civil Court alone could try and decide the question of declaration of ownership of any immovable property between the parties and such disputes could not be decided in summary proceedings under the PP Act. 72. This takes us to examine another question raised by the respondents as to whether judgment rendered by the Bombay High Court dated 06.02.1979 stood merged in the order of this Court dated 04.08.1998. In our view, it does not merge. 73. In our view, the principle of merger is fairly well settled. For merger to operate, the superior court must go into the merits of the issues decided by the subordinate court and record finding/s one way or other on its merits. If this is not done by the superior court, a plea of merger has no application in such a case and the order of subordinate court would continue to hold the field (see Shanmugaval Nadar vs. State of Tamil Nadu [1989 (4) SCC 187 ]. 74. In our view, this court while disposing of the appeals by its order dated 04.08.1998, did not go into the merits of the various contentions which were decided by the High Court in its order dated 06.02.1979 and disposed of the appeal on the statement made by the respondents through the Solicitor General that respondent No.1 (Union of India) would take recourse to the remedy of the civil court by filing a civil suit. 75. Indeed, in the light of such statement made by the respondents (who were appellants in the appeal), which resulted in disposal of their appeal, the respondents themselves did not call upon this Court to examine the merits of the issues raised by them in their appeals. In such a situation, there was no occasion for this Court to apply the mind to the merits much less to record any finding on any of the issues arising in the appeal. In this view of the matter, the principle of merger could not operate. 76. Now coming to another argument, the learned counsel for the respondents contended that there lies a distinction between the two types of Tribunals -one which exercises powers only when it is shown that certain state of facts exist and other which has jurisdiction to determine whether the preliminary state of facts exists as well as it has the jurisdiction to proceed further to do something more as explained in the case reported in Chaube Jagdish Prasad vs. Ganga Prasad Chaturvedi 1959 (supp) 1 SCR 733 pages 743-744. 77. It is on the basis of this submission, learned counsel contended that the Estate Officer has jurisdiction to examine the facts of this case in Section 4 proceedings under the Act. 78. We do not agree. In our opinion, once the Constitution Bench in the case of Kaiser-I Hind (supra) after examining the provisions of the PP Act has laid down the law as to how the PP Act operates and needs to be applied, all the issues arising under the PP Act has to be examined in the light of the law which deals with the PP Act. 79. The law laid down in Chaube Jagdish Prasad (supra) relied on by the learned counsel for the respondents was entirely on different context and has no application for deciding the issue involved in this appeal. 80. Yet, last submission of the learned counsel for the respondents that the writ petition was not maintainable to challenge the notice issued under Section 4 of the PP Act has no merit and deserves rejection. Suffice it to say, firstly, the High Court having entertained the writ petition and dismissing it on merits, this objection does not survive for consideration and second, in the light of long line of decisions on this question, a writ petition to question the legality and correctness of the notice issued under any Act is no bar in entertaining the writ petition in appropriate case. The case at hand was regarded as an appropriate case for entertaining the writ petition [see -Siemens Ltd. vs. State of Maharashtra 2006 (12) SCC 33 and Whirlpool Corporation vs. Registrar of Trade Marks (1998) 8 SCC 1 ]. 81. Before parting, we consider it apposite to mention that we have set out the facts of the case only for the purpose of appreciating and deciding the legal issue arising in the appeal namely - the validity of issuance of notice under Section 4 of the PP Act and not beyond it. We have not examined the rival claims of the parties over the property in question on merits and nor have recorded any finding on the rival claims. 82. In this view of the matter, whenever the question of ownership of the rights of the parties will be gone into by the concerned court, it shall decide the said question/s strictly on the basis of pleadings and the evidence adduced by the parties in accordance with law uninfluenced by any observations made by the High Court and this Court.

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

Explanation:
1[ds]44. Having heard the learned counsel for the parties and on perusal of the record of the case including the written submissions, we find force in the submissions urged by the learned counsel for the appellants (writ petitioners)47. Though, in Express Newspaper case (supra) several other issues relating to Fundamental Rights conferred on the citizens under Article 19 (1) (a) and (g) of the Constitution and its violation qua State fell for consideration and were decided, this Court was also called upon to decide the legality and correctness of the notice issued by the Government of India through their officers in their capacity as the lessors of the land in question demanding therein a right of re-entry under the terms of the lease deed on the demised land from the lessee (writ petitioner of the case)48. It is this issue, which was extensively dealt in the context of civil law as also the special laws, which provides for taking recourse to the summary remedy by the State to take possession of the State land from its occupants.50. At this stage, it is necessary to deal with one objection raised by learned Additional Solicitor General on the aforementioned statement of law laid down in Express Newspaper case (supra)51. The objection of learned counsel for the respondent was that the view expressed by A.P. Sen J. in Paras 86-87 could at best be regarded as his own view but not the view of the Court by majority because other two learned Judges (E.S. Venkataramiah J. and R.B. Mishra J.) did not express any opinion on this question. It is for this reason the learned counsel submits that this Court should not place any reliance on the statement of law laid down in Paras 86-8756. Keeping in view the reasoning of Lord Esher M.R., when we examine the statement of law laid down in Express Newspaper decision (supra), we are of the considered view that the reasoning of A.P. Sen J. contained in Paraa 86-87 is the law laid down on behalf of all the three Judges. It is a law by majority and is thus a law laid down by the Court under Article 141 of the Constitution57. It is for the reason that first, though the lead judgment was authored by A.P. Sen J., the other two Judges concurred with the view and the reasoning of A.P. Sen J. Second, both the concurring Judges also expressed their individual views on the question on the same lines on which A.P. Sen J. expressed his view and the Third, there is no dissent inter se Lordships on any issue much less on the issue with which we are concerned in this appeal58. It is for these reasons, we are of the considered view that law laid down in the lead judgment in Express Newspaper (supra) is the law by three Honble Judges who constituted the Bench and thus binds all the Courts in the country under Article 141 of the Constitution. It satisfies the test laid down by Lord Esher M.R. in the case of The Guardian (supra)59. The question involved in Express Newspaper case (supra) in relation to remedy of the State qua person in possession of the land was again considered by a Bench consisted of three Judges in a case reported in State of Rajasthan vs. Padavati Devi [supra]60. In that case also, the question arose as to whether the State Government can take recourse to a summary remedy of eviction of a person under the State Revenue Laws from the land when such person raises a bona fide dispute about his right to remain in occupation over such land. Their Lordship held that in such a situation, the summary remedy to evict such person under the Act couldnt be resorted to64. Keeping in view the statement of law laid down by this Court in cited decisions supra, when we examine the facts of the case in hand, we have no hesitation in holding that the appellants have raised a bona fide dispute on the question of ownership of the suit property qua respondent No.1 (Union of India)65. A fortiori, in such case, respondent No. 2 has no jurisdiction to invoke the powers under section 4 of the PP Act by resorting to a summary procedure prescribed in the PP Act by sending a notice under Section 4 of the PP Act for appellants eviction from the suit property. This we say for the following six reasons66. First, the facts set out above and the documents filed in their support, in no uncertain terms, establish that there exists a bona fide long standing dispute as to who is the owner of the suit property -the appellants or Respondent No.1 (Union of India)67. Second, respondent No.1 itself admitted that there exists a bona fide dispute between the appellants and respondent No.1 (Union of India) over the suit property involving disputed questions of facts (see Paras 7, 8 & 18 of the Review Petition filed by Respondent No.1 in Civil Appeal Nos.608-612 against the appellants in respect of suit property in this Court)68. Third, respondent No.1 (Union of India) itself stated in this Court in earlier round of litigation while disposing of their Civil Appeal Nos.609, 611-613, 614 and 621 of 1980 that they would seek dispossession of the appellants from the property in question in accordance with law and, if need be, by filing civil suit in the Civil Court. The respondents cannot now be permitted to go back from their statement and take recourse to a remedy of summary procedure under the PP Act, which is otherwise not available to them69. Fourth, this Court while granting special leave to appeal on 03.08.2009 had also granted liberty to respondent No.1 (Union of India) to file civil suit against the appellants, if they are so advised. It was, however, not resorted to70. Fifth, the effect of quashing the resumption notice dated 21.01.1971 issued by the respondents by the High Court vide order dated 05.02.1979/06.02.1979 in relation to the suit property was that respondent No.1 (Union of India) was not entitled to resort to any kind of summary remedy to evict the appellants from the suit property not only under the Bombay Land Requisition Act, 1948 but also under the PP Act because the PP Act also provides similar summary remedy of eviction71. Sixth, the Civil Court alone could try and decide the question of declaration of ownership of any immovable property between the parties and such disputes could not be decided in summary proceedings under the PP Act73. In our view, the principle of merger is fairly well settled. For merger to operate, the superior court must go into the merits of the issues decided by the subordinate court and record finding/s one way or other on its merits. If this is not done by the superior court, a plea of merger has no application in such a case and the order of subordinate court would continue to hold the field (see Shanmugaval Nadar vs. State of Tamil Nadu [1989 (4) SCC 187 ]74. In our view, this court while disposing of the appeals by its order dated 04.08.1998, did not go into the merits of the various contentions which were decided by the High Court in its order dated 06.02.1979 and disposed of the appeal on the statement made by the respondents through the Solicitor General that respondent No.1 (Union of India) would take recourse to the remedy of the civil court by filing a civil suit75. Indeed, in the light of such statement made by the respondents (who were appellants in the appeal), which resulted in disposal of their appeal, the respondents themselves did not call upon this Court to examine the merits of the issues raised by them in their appeals. In such a situation, there was no occasion for this Court to apply the mind to the merits much less to record any finding on any of the issues arising in the appeal. In this view of the matter, the principle of merger could not operate76. Now coming to another argument, the learned counsel for the respondents contended that there lies a distinction between the two types of Tribunals -one which exercises powers only when it is shown that certain state of facts exist and other which has jurisdiction to determine whether the preliminary state of facts exists as well as it has the jurisdiction to proceed further to do something more as explained in the case reported in Chaube Jagdish Prasad vs. Ganga Prasad Chaturvedi 1959 (supp) 1 SCR 733 pages 743-74477. It is on the basis of this submission, learned counsel contended that the Estate Officer has jurisdiction to examine the facts of this case in Section 4 proceedings under the Act78. We do not agree. In our opinion, once the Constitution Bench in the case of Kaiser-I Hind (supra) after examining the provisions of the PP Act has laid down the law as to how the PP Act operates and needs to be applied, all the issues arising under the PP Act has to be examined in the light of the law which deals with the PP Act.79. The law laid down in Chaube Jagdish Prasad (supra) relied on by the learned counsel for the respondents was entirely on different context and has no application for deciding the issue involved in this appeal80. Yet, last submission of the learned counsel for the respondents that the writ petition was not maintainable to challenge the notice issued under Section 4 of the PP Act has no merit and deserves rejection. Suffice it to say, firstly, the High Court having entertained the writ petition and dismissing it on merits, this objection does not survive for consideration and second, in the light of long line of decisions on this question, a writ petition to question the legality and correctness of the notice issued under any Act is no bar in entertaining the writ petition in appropriate case. The case at hand was regarded as an appropriate case for entertaining the writ petition [see -Siemens Ltd. vs. State of Maharashtra 2006 (12) SCC 33   and Whirlpool Corporation vs. Registrar of Trade Marks (1998) 8 SCC 1 ]81. Before parting, we consider it apposite to mention that we have set out the facts of the case only for the purpose of appreciating and deciding the legal issue arising in the appeal namely - the validity of issuance of notice under Section 4 of the PP Act and not beyond it. We have not examined the rival claims of the parties over the property in question on merits and nor have recorded any finding on the rival claims82. In this view of the matter, whenever the question of ownership of the rights of the parties will be gone into by the concerned court, it shall decide the said question/s strictly on the basis of pleadings and the evidence adduced by the parties in accordance with law uninfluenced by any observations made by the High Court and this Court.