Najmuddin & Ors vs Union Of India & Ors

3. Appellants who are three in number filed the aforementioned writ petition in the year 1985 questioning the validity and/or legality of a notification issued by 2 the Union of India seeking to acquire lands bearing Khasra No.186, admeasuring 3 Bigha 6 Biswas pertaining to Khewat No.50/50, Khatoni No.100 and Khasra No.334/206 admeasuring 3 bigha 6 biswas as per Khewat No.92/96, Khatoni No.174, both situated at Village Begumpur, Tehsil Mehrauli, Delhi purported to be in terms of the Resettlement of Displaced Persons (Land Acquisition) Act, 1948 (for short, `the Act'). Indisputably, the said Act was enacted in the wake of partition of the country as a result whereof there was a large scale migration to and from India.

Md. Sheruddin whose name was said to have been recorded in Jamabandi in the year 1948-1949 shifted to Meerut in the State of Uttar Pradesh. He was declared an evacuee in terms of the Administration of Evacuee Property Act in the year 1953. He prayed for restoration of the said land and allegedly an order in his favour was passed on 28.7.1956 by the Additional Custodian of Evacuee Property (Rural). Yet again after the death of Md. Sheruddin which took place on 9.4.1958, the property was declared to be an evacuee property and yet again an order restoring the land in question in favour of the appellants herein was passed on 10.10.1958 by the appropriate authority accepting their claim of entitlement to the extent of 1/3rd share of said Md. Sheruddin.

An application for injunction was also filed in the said suit. Thereafter a suit was filed. An interim order was passed restraining the defendant from forcibly dispossessing them. The said suit, however, was withdrawn and a writ petition was filed praying, inter alia for the following reliefs :

6. The said writ petition was listed for hearing in 2002. Appellants were taking adjournments. The writ petition was ultimately dismissed for default on 11.2.2005.

10. By reason of the impugned judgment, the application for restoration was dismissed, holding :

13. The Writ Petition was dismissed for default, as noticed hereinbefore, by an order dated 11.2.2005. For reasons best known to the appellants they have not filed a copy of the said order. When a writ petition is dismissed for default, indisputably, the High Court may restore the same in exercise of its jurisdiction under Article 226 of the Constitution of India itself and/or in exercise of its inherent power. For the purpose of passing such order conduct of the parties would be a relevant factor. Appellants filed a writ application, inter alia, on the premise that they had no knowledge of the purported notification issued by the Delhi Administration which was issued as far back as in 1962.

14. It is true that in the writ petition, an interim order was passed in their favour.

It, however, now transpires that an Arbitrator appointed under the Rehabilitation Act had made an award on or about 7.5.1962 in respect of one-third share of Md. Sherruddin for Plot No.334/206 and one-eighteenth share of Plot No.404/315, 405/315, 402/315, 403/315, 316/227, 317/227 and 318/227 at the rate of Rs.322 per bigha plus interest at the rate of 4 per cent per annum. An ex gratia amount was also directed to be paid from the date of taking over of possession.

17. The High Court, therefore, in our opinion, cannot be said to have committed any error in refusing to exercise its discretionary jurisdiction in favour of appellants. The impugned order, therefore, does not warrant any interference by us in exercise of our discretionary jurisdiction under Article 136 of the Constitution of India.

18. The appeal is, therefore, dismissed with costs. Counsel's fee assessed at Rs.50,000/-.

December 18, 2008