Shankara Co-Op. Housing Society Ltd vs M. Prabhakar & Ors

5) The facts in extenso require to be noticed. They are:- The disputed lands originally belonged to one Mandal Bucham, 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 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 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, 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" 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 support of their claim.

9) The Tahsildar, Medchal Taluk, issued a letter dated 29.06.1966, inter-

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.

Subsequently, on 13.03.1997, the prayer in the writ petition was sought to be amended to include a prayer to quash the Notification No. 55 in NO CE 4064 to 4080 dated 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.

Before us, the 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 through his legal representatives has been dismissed by an order made by this Court dated 13.8.2007 on the ground of delay.

23) One of the appellants before us is a co-operative 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 the entire sale consideration. It is asserted that the Society, after obtaining permission from the competent authorities, has allotted residential plots carved out of the "disputed lands" to its members.

40) Shri. Ranjit Kumar rebuts the claim of the appellants 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 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.

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. The petitioners are seeking quashing the order 42 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 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.

Sri Ranjit Kumar, learned senior counsel, would contend that the judgment and order in W.P. No. 1051 of 1966 was not dismissed on merits but only on the ground of delay and laches and therefore, 61 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 SCC 135.

"(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 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 justice.

(94) Re : Effect of acquisition and Distribution of the Evacuee Propety under the Displaced Persons (Compensation and Rehabilitation) Act, 1954.

(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 who is evacuee.

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 justice before notifying a property an evacuee property.

relief to the writ petitioner/contesting respondents, since there was inordinate and unexplained delay in approaching the court.

(III) A subsequent writ petition was not maintainable in respect of an issue concluded between the parties 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 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 dated 11.12.1952 is valid in law.

(VII) In view of the clear language employed in Section 24 of the Act, the Chief Settlement Commissioner had no jurisdiction to revise the order passed by the Collector-cum-Deputy Custodian under the Evacuee Property Act.

(112) In view of the above discussion, the appeals are allowed. The Judgment and order passed by the High Court in W.P. 17222 of 1990 dated 27.04.2000 is set aside. Costs are made easy.