Case: Shankara Co-Op. Housing Society Ltd Vs. M. Prabhakar

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. It appears that general notices were also published in the village in which the said lands were situated on 26.01.1951. Notice was also given to the ancestors of the contesting respondents on 15.02.1951. It is stated that neither the contesting respondents nor anybody else had filed any objection to the notice issued under Section 7(1) of the Evacuee Property Act.7) After conducting a detailed enquiry in respect to the claim of ownership of the said property, the Deputy Custodian and Collector issued a Notification No.55, in NO CE/4064 to 4080 dated 11.12.1952, declaring the disputed property in issue as an Evacuee Property under Section 7 of the Evacuee Property Act. This notification was subsequently published in the Hyderabad Government Gazette. Pursuant to the aforesaid declaration, the name of the Collector/Custodian was entered in the Revenue Records. After such declaration, the Central Government has acquired the "disputed lands" by issuing notification under Section 12 of the Displaced Persons Act for the rehabilitation of the persons who were displaced during the partition.8) The erstwhile owners of the property or the ancestors of the contesting respondents did not question the declaration of the "disputed lands" as evacuee property and the subsequent acquisition by the Central Government. It was on or about in the year 1955, the ancestors of the respondents herein claimed ownership of the `disputed lands and made their representation before the authorities under the Evacuee Property Act. The authorities, however, had informed them that they should prefer an appeal or a review petition. In spite of such counsel, they continued to make representations and petitions in furtherance of their claim.9) The Tahsildar, Medchal Taluk, issued a letter dated 29.06.1966, inter- alia, seeking to auction the "disputed lands" on yearly lease basis. Aggrieved by the action of the authorities, Shri. Mandal Anjaiah, claiming to be ancestor of the contesting respondents, preferred a writ petition before the Andhra Pradesh High Court, in No. 1051 of 1966, inter-alia, seeking a writ of prohibition or direction restraining the respondents in the petition from auctioning the "disputed lands" and to direct the authorities to decide the representations/ petitions filed by the writ petitioner. The Regional Settlement Commissioner/Custodian of Evacuee property was arrayed as one of the respondents to the proceedings. In his affidavit dated 21.08.1967, he had averred that the notice as required under Section 7 of the Evacuee Property Act read with Rule 6 of the Rules notices had been issued to all the parties interested in the disputed lands.10) During the pendency of the writ petition, a portion of the land was allotted to one Smt. Eshwari Bai, and therefore, she was impleaded as one of the respondents in the writ petition. During the pendency of this writ petition, other contesting respondents had filed a Revision Petition under Section 27 of the Evacuee Property Act before the Deputy Custodian General, Jaisalmer House, New Delhi, to revise the notification dated 11.12.1952 declaring the disputed lands as evacuee property.11) The writ petition came to be dismissed by the High Court vide its order dated 14.06.1968 on the ground that the claim of the respondents is highly belated and they have also not exhausted the alternate remedy provided under the provisions of the Evacuee Property Act. The order passed by the Court has some relevance and, therefore, the same is extracted. It readsthis application for the issue of a writ under Article 226 of the Constitution, what is sought to be challenged by the petitioner is an order of the Deputy Custodian of Evacuee Property under Section 7 of the Administration of Evacuee Property Act declaring certain properties as evacuee properties. The notification was made on 11.12.1952. The petitioner did not avail himself of the remedy provided under Section 24 of the Act by way of an appeal. In fact, in 1955 and again in 1957 and 1959, he appears to have approached the Deputy Custodian with a request that the land should not be treated as evacuee property and on all these occasions, he was informed that he should go in appeal and not file review applications. It is not open to the petitioner without preferring an appeal, to approach this court at a late stage with a petition for the issue of a writ. There are no merits in this writ petition and it is therefore dismissed withAfter 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. Sanads (Transfer of Titles and Rights) were also issued to them and their names were recorded in the revenue records.13) As we have already noticed, some of the legal representatives of late Mandal Bucham had approached the Deputy Custodian General, New Delhi by filing a revision petition under Section 27 of the Evacuee Property Act, inter alia questioning the notification dated 11.12.1952. The Deputy Custodian General vide his order dated 25.09.1970, had allowed the revision petition and remanded the case to Custodian- cum-Collector, Hyderabad District for re-determination of the evacuee nature of the lands after affording an opportunity of hearing to all the parties.14) After such remand, Collector-cum-Deputy Custodian of Evacuee Property had conducted a re-enquiry and he had concluded that there was no evidence to show that late Rahim Baksh Khan came to be the owner of the land in pursuance of an auction by the Court in execution of any money decree. Hence, the Collector-cum-Deputy Custodian vide order dated 28.05.1979 came to the conclusion that since there were no records available to the contrary, Shri. Mandal Bucham and the other contesting respondents continue to be the owners of the disputed lands.15) Aggrieved by the aforesaid order, the allottees had filed a Revision Petition before the Chief Settlement Commissioner of Evacuee Property, Hyderabad under the Displaced Persons Act, who, by an order dated 27.10.1979, had called for the records of the case in order to review the aforementioned order of the Collector-cum- Deputy Custodian dated 28.05.1979. It appears that in view of the pendency of the proceedings, the Tahsildar refused to give possession of the "disputed lands" to the allottees (who had sanads in their name) in the light of the aforesaid order of the Collector-cum- Deputy Custodian, Hyderabad District.16) The Chief Settlement Commissioner of Evacuee Property, by his order dated 11.05.1983, set aside the aforesaid order of the Collector- cum- Deputy Custodian, and declared that the said property belonged to late Rahim Baksh Khan and that by virtue of the Notification No. 55 in NO CE/4064 to 4080 of 1952, the disputed lands are evacuee property.17) Once again, the contesting respondents had filed a revision petition under Section 33 of the Displaced Persons Act before the Secretary, Revenue Department, Govt. of Andhra Pradesh to revise/review the aforesaid order, which came to be rejected vide order dated 23.07.1983.18) The contesting respondents filed a writ petition No. 7517 of 1983 before the High Court of Andhra Pradesh, inter alia, requesting the court to direct the authorities under the Displaced Persons Act to initiate suo-moto proceedings to determine the claim of ownership of the disputed lands. The High Court, by its order dated 26.07.1988, dismissed the writ petition, inter alia holding that it cannot compel any authority to initiate and dispose of the suo moto proceedings under Section 33 of the Displaced Persons Act.19) The contesting respondents filed another Writ Petition No.17722 of 1990 on 13.11.1990 (from which the impugned judgment has arisen) before the High Court, inter alia requesting the High Court to issue a writ or order directing the Commissioner, Survey Settlement and Land Records/Chief Settlement Commissioner, Evacuee Property, Hyderabad to conduct an enquiry into questions of title of "disputed lands" and correctness of the declaration of the said property as evacuee property in pursuance of proceedings of the Chief Settlement Commissioner dated 27.10.1979. It is relevant to notice that the contesting respondents did neither seek for the quashing of the Notification No. 55 in NO CE /4064 to 4080 dated 11.12.1952, nor made the present appellant a party to the writ proceedings. 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 27.08.1999.20) By the impugned judgment dated 27.04.2000, the learned Division Bench of the High Court allowed the writ petition by setting aside the order passed by the Chief Settlement Commissioner dated 11.05.1983 and restored the order passed by the Collector-cum-Deputy Custodian of Evacuee Property dated 28.07.1979. Aggrieved by the Judgment and order passed, the appellant-Shankar Co-operative Housing Society has come before us in these civil appeals.

Court's reasoning:
53) The relevant considerations, in determining whether delay or laches should be put against a person who approaches the writ court under Article 226 of the Constitution is now well settled. They are: (1) there is no inviolable rule of law that whenever there is a delay, the court must necessarily refuse to entertain the petition; it is a rule of practice based on sound and proper exercise of discretion, and each case must be dealt with on its own facts. (2) The principle on which the court refuses relief on the ground of laches or delay is that the rights accrued to others by the delay in filing the petition should not be disturbed, unless there is a reasonable explanation for the delay, because court should not harm innocent parties if their rights had emerged by the delay on the part of the petitioners. (3) The satisfactory way of explaining delay in making an application under Article 226 is for the petitioner to show that he had been seeking relief elsewhere in a manner provided by law. If he runs after a remedy not provided in the Statute or the statutory rules, it is not desirable for the High Court to condone the delay. It is immaterial what the petitioner chooses to believe in regard to the remedy. (4) No hard and fast rule, can be laid down in this regard. Every case shall have to be decided on its own facts. (5) That representations would not be adequate explanation to take care of theOn this issue, we have heard the learned counsel for the parties in great detail, since the immoveable property rights of the parties are involved. In our considered view, there is no explanation, much less satisfactory explanation offered by the respondents in approaching the writ court after an inordinate delay of nearly 15 years from the date of the notification issued under the Evacuee Property Act. For the delay from 1952 to 1955, the contesting respondents would only submit that they were not aware of the notification issued under the Evacuee Property Act, since no notice was served on them, though a public notice was issued by the authority under the Evacuee Property Act. While explaining the delay of nearly eleven years from 1955 to 1966, they contend that they were in possession of the property and they were making representations before the authorities under the Evacuee Property Act for redressal of their grievance. The delay after the orders were passed by the Settlement Commissioner in the year 1983 till the writ petition was filed in the year 1990, it is explained that they had moved the State Government to suo-moto revise the order passed by the Chief Settlement Commissioner and since the State Government returned their request, they had approached the High Court to issue directions to the State Government to issue appropriate directions. In our considered view, at every stage, there was inordinate delay in approaching the authorities for redressal of their grievance. As rightly contended by Shri. Mukund, learned counsel, even when they approached the authorities, they were claiming wrong reliefs or incomplete reliefs. Even when they filed the writ petition in the year 1990, they did not choose to question the correctness of the notification issued under the Evacuee Property Act but was questioned by way of filing an amendment application in the year 1998. There is some merit in the submission made by learned counsel for the contesting respondents that the petitioners in their pleadings before the writ court, had not even offered any explanation, much less satisfactory explanation, in approaching the court nearly after three decades from the date of notification issued under the Evacuee Property Act. It is now well settled that the power of the High Court under Article 226 of the Constitution to issue an appropriate writ, order or direction is discretionary. One of the grounds to refuse relief by a writ court is that the petitioner is guilty of delay and laches. Inordinate and unexplained delay in approaching the court in a writ is indeed an adequate ground for refusing to exercise discretion in favour of the petitioners therein. The unexplained delay on the part of the petitioner in approaching the High Court for redressal of their grievances under Article 226 of the Constitution was sufficient to justify rejection of the petition. The other factor the High Court should have taken into consideration that during the period of delay, interest has accrued in favour of the third party and the condonatoin of unexplained delay would affect the rights of third parties. We are also of the view that reliance placed by Shri Ranjit Kumar on certain observations made by this Court would not assist him in the facts and circumstances of this case. While concluding on this issue, it would be useful to refer the observations made by the Court in the case of Municipal Council Vs. Shaha Hyder Baig (2002) 2 SCC 48, wherein it is stated that `delay defeats equity and that the discretionary relief of condonation can be had, provided one has not given by his conduct, given a go by to hisWe do not agree with the reasoning and conclusion reached by the Division Bench of the High Court. We do not think that the decision of the court has been correctly read. However, we do agree with the learned Judges that the Judgment should be read as a whole and understood in the context and circumstances of the facts of that case. In this context, it is worthwhile to recall the observations made by this court in the case of U.P. State Road Transport Corporation v. Asstt. Commissioner of Police (Traffic) Delhi [2009(3) SCC 634], wherein it is observed that "a decision is an authority, it is trite for which it decides and not what can logically be deduced therefrom. This wholesome principle is equally applicable in the matter of construction of a judgment. A judgment is not to be construed as a Statute. It must be construed upon reading the same as a whole. For the said purpose, the attending circumstances may also be taken intothis ground was available, the same was not raised. Therefore, it is contended that a ground, though opened to be raised, but not raised in earlier writ petition, cannot be allowed to be raised in a subsequent writ petition. 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, principles of constructive res judicata would notIn our view, this issue need not detain us for long. This Court in the case of Devilal Modi, Proprietor, M/s Daluram Pannalal Modi v. Sales Tax officer Ratlam & Ors. [AIR 1965 SC 1150 ], has observed that "the rule of constructive res judicata that of a plea could have been taken by a party in a proceeding between him and his opponent, he would not be permitted to take that plea against the same party in a subsequent proceeding, which is based on the same cause of action, is founded on the same considerations of public policy. If the doctrine of constructive res judicata is not applied to writ proceedings, it would be open to the party to take proceedings one after another and urge new grounds every time, and that plainly is inconsistent with considerations of Public policy."77) In the present case, it is admitted fact that when the contesting respondents filed W.P. No. 1051 of 1966, the ground of non- compliance of statutory provision was very much available to them, but for the reasons best known to them, they did not raise it as one of the grounds while challenging the notification dated 11.12.1952 issued under the Evacuee Property Act. In the subsequent writ petition filed in the year 1990, initially, they had not questioned the legality of the notification, but raised it by filing an application, which is no doubt true, allowed by the High Court. In our view, the High Court was not justified in permitting the petitioners therein to raise that ground and answer the same, since the same is hit by the principles analogous to constructive resWe are of the view that the High Court has not committed an error while entertaining a writ petition filed under Article 226 and 227 of the Constitution, wherein the proceedings under Section 7 of the Evacuee Property Act was questioned. We say so for the reason that under the Evacuee Property Act, there is specific bar for the civil court to adjudicate on the issue whether certain property is or is not evacuee property. This issue can be decided only by the custodian under the Act. Any person aggrieved by the findings of the custodian can avail the other remedies provided under the Act. The findings and the conclusion reached by the authorities under the Act in an appropriate case can be questioned in a petition filed under Article 226 of the Constitution even it involves disputed questions of facts. This issue, in our view, is no more res integra in view of three Judge Bench decision of this Court in Jafran Begums caseShri Ranjit Kumar would submit that late Rahim Baksh Khan never became the owner of the lands since he did not execute the money decree that he had obtained from a civil court. The learned senior counsel by placing reliance on various provisions of the Evacuee Property Act and the rules framed thereunder, submits that since procedure prescribed under the Evacuee Property Act is not followed, the authorities under the Act could not have declared the disputed lands as evacuee property. It is submitted that the order passed under Section 7 of the Evacuee Property Act is manifestly illegal and the illegality cannot be perpetuated against the contesting respondents since they are owners and in continuous possession of the property. The learned senior counsel also submits that except the notification issued under Section 7 of the Act, no other document such as order passed under the Act after notice to the persons interested in the lands is produced by the State Government in whose custody the records of the proceedings were available. Therefore, Deputy Custodian General was justified in setting aside the declaration made under Section 7 of the Evacuee Property Act which order has merged with the impuged judgment and order of the High Court. However, learned counsel for the State of Andhra Pradesh by referring to their counter affidavit filed in the writ petition before the High Court submits that the authority under the Act before issuing notification under Section 7 of the Evacuee Property Act, the procedure prescribed therein had been followed and this assertion had not been denied by the respondents by filing their reply affidavit and since no denial of the factual assertion made by the State Government, the only inference that can be drawn is that the proper procedure prescribed under the Act had been followed before issuing the notification under the Evacuee Property Act.(91) Admittedly, before the High Court, parties to the lis had not produced any records. Petitioners therein claimed that they were not dispossessed from the lands in dispute pursuant to any money decree by late Rahim Baksh Khan or his legal representatives. It is the stand of the appellants and also the State Government that the name of late Rahim Baksh Khan had been recorded in the Khatra Khatauni and the authorities under the Evacuee Property Act after issuing notices to the legal representatives of late Rahim Baksh Khan and also the public notice, the notification under Section 7 of the Act was issued and gazetted. Since the records are of the year 1952, neither the State Government nor the contesting respondents could produce any records or documents in support of their claim. However, based on the affidavits filed by the petitioner, the High Court proceeds to hold that they were not dispossessed from their lands in accordance with law. This reasoning of the learned Judges is firstly difficult to comprehend and secondly, difficult to accept. It is the specific case of the appellants, by placing reliance on the revenue records, that the name of late Rahim Baksh Khan found a place in the revenue records prior to issuance of the notification dated 11.12.1952 under the Evacuee Property Act and, thereafter, the name of the custodian is shown as the owner of the lands. The burden of proof was on the petitioners therein to prove their title, right and interest in the property. It looks again very strange to us that the High Court, in the absence of any records of the year 1952, proceeds to determine that the official respondents had not followed the mandatory requirement of the provisions of the Evacuee Property Act and rules framed thereunder before declaring the disputed lands as evacuee property. It also looks odd and queer to us that the High Court, in the absence of any records of the civil court and the executing court, proceeds to arrive at a definite finding that the sale of property had not taken place. Pursuant to the money decree passed, the executing court had not auctioned disputed lands and late Rahim Baksh Khan became the owner of the lands, though it concedes that the above facts have to be proved with reference to the records and there cannot be oral evidence in this regard. To say the least, it was highly inappropriate for the High Court to have proceeded to determine whether any notice was issued to late Mandal Buchaiah before notifying the property as evacuee property without there being any material nor the documents and records by relying only on the procedure prescribed under the Act and the rules thereunder, even after noticing that both the parties have not produced any records, since the records are old and not traceable. In view of the above, we are of the opinion, the High Court was wholly incorrect when it arrives at a finding that there is manifest illegality while issuing notification under Section 7 of the Evacuee Property Act. For the very same reason, we cannot also accept the findings and the conclusion reached by the Collector-cum-Deputy Custodian in his order dated 28.05.1979.(92) The High Court in the impugned Judgment, also gives a finding that the authorities under the Act have violated the principles of natural justice in not issuing notice to the owners of the lands in dispute before taking any action under the Act. We are of the view that whether any notice under the Act was issued or not, can only be decided with reference to the records. Such records were neither available nor any material was produced by the petitioners in support of their assertion made in the writ petition. Though, this assertion was denied by the respondents in their counter affidavit filed before the Court, this issue is answered by the High Court in favour of the petitioners. We disagree with the findings and conclusion reached by the High Court in thisShri Ranjit Kumars submission is that the proceedings under the 1954 Act only happen if the proceedings under the 1950 Act are valid. If the proceedings under 1950 Act is invalid, the 1954 Act does not come into operation. To demonstrate that, the proceedings under the Evacuee Property Act is invalid for want of notice on the person/persons who would be effected by an order under the Act, the learned senior counsel has relied on the observations made by the High Court of Bombay in the case of Abdul Majid Hazi Mohammed vs. P.R. Nayak (AIR 1951 Bombay 440), wherein the Court has observed that mode of service of notice under Section 7 of Act read with Rule 25 of the Rules, contents of the notice and the nature of the order that requires to be passed by the Custodian under the Evacuee PropertyWhile answering the issue whether the `disputed lands is evacuee property or not, we have held that the notification issued under Section 7 of the Evacuee Property Act is valid in law and, therefore, one and the only conclusion that can be reached on this issue is, in the facts and circumstances of the case, in view of the notification issued by the Central Govt. under Section 12 of the Displaced Persons Act, for the `disputed lands had vested in the Central Govt. and thereby had lost the status of evacueeSection 24 of the Act gives power of revision to Chief Settlement Commissioner either on his motion or an application made to him to call for the record of any proceeding under the Act in order to satisfy himself as to legality or propriety of any order passed therein and to pass such order in relation thereto as he thinks fit. The Section also provides that the said powers can be used in relation to the orders passed by Settlement Commissioner, an Assistant Settlement Commissioner, an Additional Settlement Commissioner, a Settlement Commissioner, a Managing officer or a managing corporation. A bare reading of the Section shows that the Chief Settlement Commissioner can revise the order if in his opinion that the orders passed by the officers named in the Section are either illegal or improper. In the instant case, the Chief Settlement Commissioner has invoked his revisional powers at the request of the allottees/displaced persons to revise the proceedings and the order passed by the Collector-cum-Deputy Custodian under the provisions of the Evacuee Property Act dated 28.05.1979. In view of the plain language of the Section, there cannot be two views. In our view, what the Chief Settlement Commissioner can do is only to revise the orders passed by those officers who are notified in the Section itself and not of the officers under the provisions of the Evacuee Property Act, if the orders passed by the named officers in this Section is either illegal or improper. To this extent, we are in agreement with the submission made by the learned senior counsel Shri Ranjit Kumar. Therefore, the orders passed by the Chief Settlement Commissioner in exercise of his revisional powers under the Displaced Persons Act is without jurisdiction and non-est in law.