Shankara Co-op Housing Society Ltd. Vs. M. Prabhakar & Ors.
J U D G M E N T
H.L. Dattu, J.
1. We grant leave in the special leave petition filed by the State of Andhra Pradesh.
2. In these civil appeals, we are required to consider essentially the erstwhile legislations with regard to the administration of property left behind in India by evacuees migrated to Pakistan during partition and the compensatory redistribution of the same amongst those persons who had migrated from Pakistan, leaving behind their property, at the time of partition.
3. The subject matter are the lands in Survey Nos. 9, 11, 47, 140, 141, 142, 143, 151, 152, 153, 676 and 677, admeasuring about 90.08 acres, situated at Khapra Village, in the erstwhile Medchal Taluk (now Vallabhnagar Taluk) of the Ranga Reddy District, Andhra Pradesh [hereinafter referred to as `the disputed lands'].
4. In this batch of three civil appeals, the appellant is the subsequent purchaser of the property in dispute from the allottees under the provisions of The Displaced Persons (Compensation and Rehabilitation) Act, 1954 (hereinafter referred to as, "the Displaced Persons Act"). It assails the judgment and order of the Division Bench of the High Court of Andhra Pradesh in WP No. 17722 of 1990 dated 27.04.2000. The State Government has also filed Special Leave Petition (c) No. 6964 of 2001 under Article 136 of the Constitution, in defense of the notification which was struck down by the impugned judgment. Since the facts and questions of law raised before us are the same in all these civil appeals, we will take up C.A. No. 4099 of 2000, in the case of Shankara Co-op. Housing Society Ltd. as the lead case for the purpose of narrating the facts leading upto the impugned judgement.
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. 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 4 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 6 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 reads :- "In this 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 with costs."
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. 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 8 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. 9 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 10 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 11 and order passed, the appellant-Shankar Co-operative Housing Society has come before us in these civil appeals.
21. The subject matter of the Civil Appeal No. 4100 of 2000 pertains to the lands in Survey No. 152 admeasuring about 13.17 acres. These lands were originally allotted to Mathura Das on 26.11.1968, Subsequently, Mathura Das has executed General Power of Attorney (GPA), in favour of P.H. Hasanand and Chandumal dated 19.12.1966. 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.
22. The subject matter in Civil Appeal No. 4101 of 2000 pertains to lands in Survey nos. 9,11,140,142,143,676 and 677, admeasuring about 20.27 acres. These lands were originally allotted to Smt. Eswari Bai on 30.11.1966. During her life time, she had executed a General Power of Attorney in favour of Thakur Hadanani on 06.08.1999. 12 During the pendency of the appeal, Smt. Eswari Bai expired. The application filed by Thakur Hadanani to bring legal representatives of Smt. Eswari bai was dismissed by this Court vide its order dated 30.03.2010 as General Power of Attorney holder of deceased has no locus- standi to file the appeal. In this appeal, the appellants before us are (1) P. Laxmi Patni, who is the son-in-law of P.M. Rao; (2) Vidya Devi, legal representative of Seetha Devi wife of Gopal Das and (3) Thakur Das is minor and represented by Smt. Vidya Devi.
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.
24. We have heard Shri. P.S. Narasimha, learned senior counsel and Shri. C. Mukund, learned counsel for the appellants and Shri. Ranjit 13 Kumar and Shri. L. Nageshwar Rao, learned senior counsel for the respondents. The State of Andhra Pradesh is represented by Shri. T.V. Ratnam, learned counsel.
25. Shri. C. Mukund, learned counsel who appears for the appellants in C.A. No. 4100 of 2000 and C.A. No. 4101 of 2000, submits apart from others, that the delay and laches on the part of the contesting respondents in approaching various authorities for redressal of their grievances, would disentitle them to claim any reliefs. It is submitted that repeated representations filed before the authorities would not be a ground to condone the delay and it is further submitted that there is inordinate delay in filing the writ petition from the date of notification issued under the Evacuee Property Act; the claim of the respondents is barred by principles of constructive Resjudicata since in the writ petition filed by the respondents before Andhra Pradesh High Court, the plea of non-service of notice on the interested persons while declaring the said lands as an evacuee property was not raised, though it was available to them; that the question of facts as to title of the said lands, etc., could not have been gone into by the High Court in its writ jurisdiction, under Article 226 of the Constitution; and that since the "disputed lands" have already been acquired under the Displaced Persons Act, the contesting respondents cannot have any right, title and interest over those lands.
26. While elaborating the issues raised, Shri. Mukund, learned counsel, submits that right from the beginning, the contesting respondents have either approached the authorities under the Evacuee Property Act or approached the judicial forums belatedly, or have gone before the wrong forum seeking either incorrect or incomplete reliefs. He submits that the competent authority under the Evacuee Property Act had not only issued the individual notices to the evacuee but also public notice was also issued on 26.01.1951.
He further states that the ancestors of the contesting respondents were served with a notice dated 15.02.1951. He also submits that there can be no dispute that the "disputed lands" belonged to late Rahim Baksh Khan, as his name was recorded in the land revenue records. He further submits that there was no challenge to the declaration of the lands as evacuee property upto the year 1955, and for the next 11 years, upto 1966, the contesting respondents made only repeated representations to the authorities, without approaching the proper judicial forum provided under the Evacuee Property Act. He further asserts, that even in 1966, when the first writ petition was filed, the only prayer that was made 15was to set aside the action of the Tahsildar seeking to auction the lands for granting Ek saala lease and not to quash the Notification No. 55 dated 11.12.1952, which had declared the disputed lands as evacuee property.
He points out that there was no averment in the writ petition filed in the year 1966 regarding non-service of the notice, which is one of the principal grounds taken by the contesting respondents in the subsequent writ petition. Shri. Mukund further asserts that at no point of time prior to the 1997 amendment to the impugned writ petition, a challenge was made to the Notification No. 55 dated 11.12.1952, declaring the lands as evacuee property. He then referred to the counter affidavit filed by the State Government before the High Court in the 1966 writ petition which states that the contesting respondents were in possession of the land on the basis of Ek Saala or annual lease for the purpose of cultivation, and they had not paid the lease amount, and when their eviction was being attempted, they claimed ownership. Subsequently, even after the dismissal of the 1966 writ petition, Shri. Mukund submits that the contesting respondents again did not pursue the correct remedies after the 1983 order.
In summation, Shri. Mukund contends that the contesting respondents did not take any steps from the time the notice 16 was issued [period between 1951 to 1955], after which they made repeated representations to the authorities, which came to be rejected [period between 1955 to 1959] and then filed the writ petition in 1966 [without doing anything for 7 years for the period between 1959 to 1966]. After this, he states even pursuant to the 1983 Order, again they did not follow the correct course, till the filing of the writ petition in the year 1990. Even when the writ petition was filed, the notification declaring the said lands as evacuee property was not challenged. In other words, Shri. Mukund asserts that every time the contesting respondents raised their voice in protest, they did it before a wrong forum or seeking the wrong or incomplete reliefs.
27. The learned counsel further submits that a person who seeks intervention of the court under Article 226 of the Constitution should give satisfactory explanation of his failure to assert his claim at an earlier date. The excuse for his procrastination should find a place in the petition submitted by him and the facts relied upon by him should be set out clearly in the body of the petition. An excuse that the contesting respondents were making repeated representations before various forums cannot merit serious consideration. In aid of his submission, the learned counsel has invited our attention to the 17 observations made by this court in City and Industrial Development Cooperation Vs. Dosu Andershir Bhiwandiwala and Anr. (2009) 1 SCC 168 (Paras 26-30), S. S. Balu and Another Vs. State of Kerala and others (2009) 2 SCC 479(Para 17), New Delhi Municipal Council Vs. Pan Singh and others (2007) 9 SCC 278 (paras 17-18) and K.V. Rajalakshmiah Setty & Anr. Vs. State of Mysore and Anr. (1967) 2 SCR 70.
28. In support of his second submission, Shri. Mukund invites our attention to the judgment and order in Writ Petition No.1051 of 1966 dated 14.06.1968 and submits that the same had been decided not only on merits but also on the ground that the writ petitioners had not availed the alternate remedy available under the Act. Alternatively, the learned counsel contends that non-service of notice as required under Section 7 of the Evacuee Property Act and the Rules framed thereunder was not raised, though the same was available to the contesting respondents and therefore, they could not have been permitted to take that plea in the subsequent writ petition filed. Therefore, subsequent writ petition from which, the present appeal arises, is barred by the principles analogous to res judicata. In aid of his submission, our attention is drawn to the decisions of this court in 18 Thakore Sobhey Singh Vs. Thakur Jai Singh and others (1968) 2 SCR 848, Mohan lal Goenka Vs. Beney Krishan Mukher Jee and others (1953) SCR 377 and Shashivraj Gopalji Vs. Ed. Appakath Ayissa and others 1949 PC 302.
29. Leaned counsel Shri. Mukund further urged that it is settled law that the fact finding task undertaken by the High Court, which is evident from the impugned judgment, is not warranted in a writ petition filed under Article 226 of the Constitution of India. He attempts to make good his argument by reading out passages from the impugned judgment, and attempts to impress upon us that the prolixity of the judgment clearly showed that the questions of fact had been gone into by the High Court while granting reliefs to the respondents. This, according to the learned counsel, is impermissible. In aid of his submission, the learned counsel has invited our attention to the observations made by this Court in the case of Surya Dev Rai Vs. Ramchander Rai and others (2003) 6 SCC 675, Ranjeet Singh Vs. Ravi Prakash (2004) 3 SCC 682 and Karnataka State Industrial Investment and Development Corporation Ltd. Vs. Cavalet India Ltd. and others (2005) 4 SCC 456.
30. Shri. Mukund submits that once the `disputed lands' are acquired under the Displaced Persons Act and allotted to the displaced persons, the Deputy Custodian of Evacuee Property will have no jurisdiction to initiate any proceedings under the Evacuee Property Act. He submits that the object of the two legislations are such that the Evacuee Property Act enabled that Government to first identify property as evacuee property and notify the same, after which, the Government would acquire such property under the Displaced Persons Act and distribute the same to the displaced persons. He contended, once such acquisition and redistribution take place under the Displaced Persons Act, the Deputy Custodian loses all his jurisdiction under the Evacuee Property Act to deal with the evacuee property. In other words, he contends that once property was distributed under the Displaced Persons Act to the displaced persons, it loses its evacuee status, and the status of such land had attained finality, and the same cannot be challenged. Reference is made to the observation of this court in the case of Major Gopal Singh and Others Vs. Custodian Evacuee Property (1962) 1 SCR 328, Basant Ram Vs. Union of India (1962) Supp. 2 SCR 733 and Defedar Niranjan Singh and another Vs. Custodian Evacuee Property and another (1962) 1 SCR 214.
31. Shri Mukund assails the judgment and order of the High Court as perverse on the ground: (a) that the High Court has not taken into consideration the fact that the contesting respondents had taken the lands on an Ek Saala lease, for which they defaulted in making payment; (b) that the High Court had completely overlooked the Order passed by the Chief Settlement Commissioner dated 11.05.1983; (c) that the plea of notice, not being served, was not taken in the writ petition filed in the year 1966. Therefore, it was not open for the contesting respondents to raise such contention in the subsequent proceedings.
32. With regard to the question of non-service of notice, Shri. Mukund would contend that if the contesting respondents were in possession of the said lands, as claimed by them, they cannot plead that they were not served with the notice issued under sub-section (1) of Section 7 of the Evacuee Property Act. He further submits that the conduct of the contesting respondents cannot be brushed aside and had a very vital bearing on this case. He also points out that the revenue records produced by the State Government before the High Court would show late Rahim Baksh Khan as the owner of the property, a fact that was overlooked by the High Court in the impugned judgment.
33. Shri. P.S. Narasimha, learned senior counsel appearing for the Society, prefaces his submission with the purpose and object behind the enactment of the Evacuee Property Act and the Displaced Persons Act. He contends that property that was acquired under the Evacuee Property Act as evacuee property was redistributed to displaced persons for a consideration, and that the sanads issued were actually sale deeds. He further states that there were no prohibition/restriction in the sanads for alienation of the property under the provisions of the Displaced Persons Act and, therefore, gave finality to question of ownership of the lands. While adopting the submissions of Shri. Mukund, the learned senior counsel would contend that once the Displaced Persons Act comes into operation, the operation of the Evacuee Property Act comes to an end. He further emphasized that the contesting respondents could not be permitted to take advantage of their own wrongs, especially when third party rights had already been created. He also urged that the subsequent writ petition filed by the contesting respondents should have been dismissed by the High Court for the same reason for which earlier writ petition was dismissed inasmuch as the cause of action in both the petitions being the same, the subsequent writ petition would be barred by the principles analogous to res judicata.
34. Shri. T.V. Ratnam, learned counsel appearing for the State of Andhra Pradesh, submits that the Evacuee Property Act is a complete code by itself, with a mechanism to deal with the question of evacuee nature of the property. He states that once it is decided by the Custodian, in exercise of his powers under the Act, that the property was an evacuee property, then it was not available for challenge in a writ petition filed under Article 226 of the Constitution. Such declaration can be questioned only by filing either an appeal or revision, as provided under the Act. He further states that the contesting respondents did not follow the procedure prescribed under the Act. Even when the Revision filed by them was rejected by the Custodian, the same was never challenged. The learned counsel pointed out in the pahani pathra or revenue records that persons other than the contesting respondents were also in possession of the land, along with Shri. Mandal Anjaiah, and states that this possession was in pursuance of the Ek Saala lease that was granted in their favour. The learned counsel points out that the revenue records would clearly prove that it is the Custodian who was the owner and in possession of the lands in dispute. He also emphasized that there was inordinate delay in challenging the notification dated 11.12.1952 and the High Court ought not to have entertained the writ petition filed in the year 1990 and unsettle the settled things.
35. Per contra, Shri. Ranjit Kumar, learned senior counsel, submitted that though late Rahim Baksh Khan had a money decree in his favour against Shri. Mandal Bucham, an ancestor of the contesting respondents, the same was never executed. He further states that there was no warrant for execution against the disputed lands in favour of late Rahim Baksh Khan. He submits that there is nothing on record to show how the rights of the contesting respondents got extinguished. It is his further submission that a proper enquiry, as required under Evacuee Property Act, was not conducted with regard to the nature of the lands. He submits that from the records, it can be made out that the Collector was informed by the Tahsildar that the lands in question were in the name of Mandal Bucham. He also states, that the requirements of personal notice as per Rule 6 of the Administration of Evacuee Property (Central) Rules, 1950 [hereinafter referred to as `the EP Rules'] were not complied with. He also states that the contesting respondents have always been in possession of the said lands, as admitted by the Government, in its counter affidavit.
36. With regard to the question of delay and laches which was the forefront of the submission of Shri. Mukund, learned counsel, he submits that the contesting respondents, who were poor and illiterate farmers, have been continuously making representations and filing petitions before the various authorities, from the time they had the knowledge of the status of the property being declared as evacuee till the filing of the writ petition in 1966. He further states that since they were in possession of the land, when they came to know that the said lands were being auctioned, they moved the High Court under Article 226 of the Constitution, without further delay. He contends that there were no third party rights at least till 1966, and that the contesting respondents were in possession of the lands and were cultivating the same, and when their possession was threatened, they moved the High Court for appropriate reliefs. It is further submitted that the High Court has merely disposed of the writ petition filed only on the ground that the petitioners therein had not exhausted alternate remedy available to them under the Evacuee Property Act.
37. Shri. Ranjit Kumar further submits that the lands allotted to Shri. Gopal Das and Shri. Jangimal that were made in 1968, and were cancelled by the Custodian, as the two allotees did not come forward to take possession of the same, vide order dt. 21.11.1987. With regard to the lands allotted to Shri. Mathuradas, the learned senior counsel would submit that this Court, by an order dt. 13.08.2007, dismissed the Special Leave Petition filed by the legal representatives of Shri. Mathuradas against the impugned judgment, on the ground of delay, as well as on merits.
38. The learned senior counsel then drew our attention to the revision undertaken by an order of the Dy. Custodian General in the year 1970, who found that Shri. Mandal Bucham was the pattedar and that the status of the lands required enquiry as there was no evidence to the claim that late Rahim Baksh Khan had purchased the said lands in an auction, as claimed by the appellants. Since the question of title was involved, the matter was rightly remanded back to the Collector-cum- Dy. Custodian, who, vide order dt. 28.05.1979, came to the conclusion that the lands were owned by the ancestors of the contesting respondents and the revenue records support their case.
39. The learned senior counsel also submits that the Order passed by the Chief Settlement Commissioner dated 11.05.1983 is manifestly illegal, as the Collector-cum-Dy. Custodian, was not one of those authorities whose order could have been revised by the Chief Settlement Commissioner in exercise of his jurisdiction under Section 24 of the Displaced Persons Act. Since the powers conferred under the aforesaid Section is only to revise those orders passed by the officers notified under the provisions of Displaced Persons Act. Therefore, it is argued that the said order is one without jurisdiction.
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. He further submits in rebuttal to the contention of the appellants of pursuing the wrong remedies, by stating that a writ petition under Article 226 was the only remedy available, as Section 36 of the 27 Displaced Persons Act bars the jurisdiction of civil courts. He also states that the argument of the appellants that once the lands are acquired by the Central Government under the Displaced Persons Act, the property ceases to be evacuee property and becomes the property of the Central Government, depends on the factor that the property is notified as evacuee property after following the due procedure prescribed under the Evacuee Property Act and the Rules framed thereunder. He further urged that if the property in question is not evacuee property, there is no question of the coming into operation of the Displaced Persons Act.
41. Shri. Ranjit Kumar further submits that the appellants are not the original allottees and they are only subsequent purchasers, from the general power of attorney (`GPA') holders of the original allottees. In some cases, he contends, the GPA holders have sold the property after the death of the principal, and in other cases, GPA holders of GPA holders of original allottees have sold the lands and in both cases, he submits that the same is impermissible in law. He further contends that the allotment to Shri. Gopal Das and Shri. Jangimal was cancelled in the year 1989, the Special Leave Petition of Shri. Mathuradas had been dismissed in the year 2007, and that this Court had disallowed 28 the substitution of the legal heirs of Smt. Eshwari Bai, on her death, due to which appellants cannot maintain these proceedings.
42. In summing up his contention, the learned senior counsel states that the Notification dated 11.12.1952 issued under sub-Section (1) of Section 7 of the Evacuee Property Act was manifestly illegal and the disputed lands could not have been declared as evacuee property, as the owners were not evacuee; that the argument of delay and laches was not available to the appellants, as the original allottees who had claimed that they weren't made a party have been heard at all stages right from the first writ petition in the year 1966; that the question of Ek Saala lease cannot be put against the respondents as the name of the contesting respondents was recorded in the Revenue records as owner of the lands; that the proceedings under the Displaced Persons Act can take place only if the proceedings under the Evacuee Property Act are validly made; that the proceedings under Section 24 of the
Displaced Persons Act culminating in the order of Chief Settlement Commissioner in the year 1983 is illegal, for the reason it can be done only of those orders passed by the officers notified in Section 24 of the Act, and that the order of Chief Settlement Commissioner is without jurisdiction and hence is a nullity; that the High Court could 29 correct any manifest illegality, such as declaring the disputed lands as evacuee property, under its writ jurisdiction, which need not be interfered with by this Court under Article 136; that the disputed questions of fact had to be necessarily gone into by the High Court under its writ jurisdiction due to the bar of jurisdiction of other Courts by virtue of Section 36 of the Displaced Persons Act; that the contesting respondents were in possession of the lands and continues to be so even till this day and this position is accepted by the State Government in the counter affidavit filed before this court; assuming that there was some delay on the part of the contesting respondents for redressal of their grievances before various forums, since the same has been condoned by the writ court, this court need not interfere with the said order.
43. Shri. L. Nageshwar Rao, learned senior counsel who appears for the contesting respondents in the Special Leave Petition filed by the State, supplemented the arguments of Shri. Ranjit Kumar. He also submitted that the only issue was whether the nature of the property was such that it fell within the ambit of evacuee property or not. He also submits that if the facts were not gone into by the High Court, there could be no decision on this aspect, and once this aspect was decided 30 in favour of the contesting respondents, then nothing remains to be decided by this Court.
44. The learned counsel have referred to several case laws for the many propositions they have canvassed before us. The relevance of these decision we will deal with at appropriate stage.
45. In the background of these facts, the following questions arise for our consideration and decision: (1) Whether the contesting respondents have been guilty of delay and laches. (2) Whether the dismissal of the writ petition No. 1051 of 1966 by the High Court decided the matter fully and finally. (3) Whether the lands in question are evacuee property as defined under the Evacuee Property Act. (4) What is the effect and the consequence of the notification issued under Section 12(1) of the Displaced Persons Act. (5) Whether the High Court could have gone into the facts under its writ jurisdiction.
46. Re : Delay and Laches : - Delay and laches is one of the factors that requires to be borne in mind by the High Courts when they exercise their discretionary power under Article 226 of the Constitution of India. In an appropriate case, the High Court may refuse to invoke its 31extraordinary powers if there is such negligence or omission on the part of the applicant to assert his rights taken in conjunction with the lapse of time and other circumstances. The Privy Council in Lindsay Petroleum Company Vs. Prosper Armstrong Hurd etc; (1874) 5 PC 221 at page 229, which was approved by this Court in Moon Mills Ltd. Vs. Industrial Courts AIR 1967 SC 1450 and Maharashtra State Road Transport Corporation Vs. Balwant Regular Motor Service AIR 1969 SC 329, has stated :-
"Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy."
47. In Amrit Lal Berry Vs. CCE (1975) 4 SCC 714, this Court took the view that "if a petitioner has been so remiss or negligent as to approach the Court for relief after an inordinate and unexplained delay, he certainly jeopardises his claims as it may become inequitable, with circumstances altered by lapse of time and other facts, to enforce, a fundamental right to the detriment of similar claims of innocent third persons."
48. In State of Maharashtra Vs. Digambar (1995) 4 SCC 683, this Court observed that "unless the facts and circumstances of the case at hand clearly justify the laches or undue delay, writ petitioners are not entitled to any relief against any body including the State."
49. In Shiv Dass Vs. Union of India (2007) 9 SCC 274, this Court opined that "the High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of 33 third party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction."
50. In City and Industrial Development Corporation Vs. Dosu Aardeshir Bhinandiwala and others (supra), this court held :- "It is well settled and needs no restatement at our hands that under Article 226 of the Constitution, the jurisdiction of a High Court to issue appropriate writs particularly a writ of Mandamus is highly discretionary. The relief cannot be claimed as of right. One of the grounds for refusing relief is that the person approaching the High Court is guilty of unexplained delay and the laches. Inordinate delay in moving the court for a Writ is an adequate ground for refusing a Writ. The principle is that courts exercising public law jurisdiction do not encourage agitation of stale claims and exhuming matters where the rights of third parties may have accrued in the interregnum."
51. Shri Ranjit Kumar, learned senior counsel for contesting respondents, invites our attention to the observations made by this court in the case of State of M.P. and others Vs. Nandlal Jaiswal and others (1986) 4 SCC 566, wherein this court has stated "this rule of laches or delay is not a rigid rule which can be cast in a straitjacket formula, for there may be cases where despite delay and creation of third party rights the High Court may still in the exercise of its discretion interfere and 34 grant relief to the petitioner. But, such cases where the demand of justice is so compelling that the High Court would be inclined to interfere inspite of delay or creation of third party rights would by their very nature be few and for between. Ultimately it would be a matter within the discretion of the Court ex-hypotheses every discretion must be exercised fairly and justly so as to promote justice and not to defeat it."
52. Reliance is also placed on the observations made by this Court in M/s Dehri Rohtas Light Railway Company Ltd. Vs. District Board, Bhojpur and others (1992) 2 SCC 598, wherein it is observed : "The rule which says that the Court may not enquire into belated and stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own facts. It will all depend on what the breach of the fundamental right and the remedy claimed are and how delay arose. The principle on which the relief to the party on the grounds of laches or delay is denied is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is a reasonable explanation for the delay.
The real test to determine delay in such cases is that the petitioner should come to the writ court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence. The test is not to physical running of time. Where the circumstances justifying the conduct exists, the illegality which is manifest cannot be sustained on the sole ground of laches."
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:
i. 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.
ii. 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.
iii. 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.
iv. No hard and fast rule, can be laid down in this regard. Every case shall have to be decided 36 on its own facts.
v. That representations would not be adequate explanation to take care of the delay.
54. Let us now advert to the contentions canvassed by learned counsel in this regard. Mr. Mukund, learned counsel for the appellants, submitted that the contesting respondent during the period 1951 till 1955, had not taken any steps for redressal of their grievance, if any, including challenging the notification issued by the competent authority under the Evacuee Property Act dated 11.12.1952. He further submits that from 1955 till 1959, the contesting respondents were making representations before forums which could not have given them reliefs. In spite of the counsel of the authorities that they should file either appeal or revision against the notification issued under the Evacuee Property Act, they did not resort to those remedies.
It is further contended that from the period 1959 till 1966, they did not choose to approach any authorities nor took any judicial action. The learned counsel submits that for the first time, they approached the High Court by filing the writ petition some time in the year 1966, inter-alia, claiming the relief of certiorari to quash the action of the authorities for auction of the acquired lands under the Displaced Persons Act for grant of Ek saala lease, but, at the time of hearing of 37the petition, they advanced a new case by contending that an appropriate writ requires to be issued to quash the notification issued under the Evacuee Property Act. It is further submitted that the High Court refused to grant the relief on the ground of delay and laches in approaching the court for quashing the notification of the year 1952 and further on the ground that the writ petitioner has not availed the alternate remedies provided under the Evacuee Property Act.
The learned counsel submits by this order that the writ court has given a finding that at a belated stage, the writ petitioner cannot challenge the notification issued on 11.12.1952 under the provisions of the Evacuee Property Act. The learned counsel further submits that after disposal of the writ petition, the contesting respondents had approached forums which could not have entertained their claim nor could have granted any relief. It is further submitted even assuming that the respondents were knocking at the doors of the wrong forum, the same should not be held against them, may not come to their aid, since the third party rights are created by allotment of the Evacuee Property to the Displaced Persons under the Displaced Persons Act.
He further submits that though the writ petition filed by one of the contesting respondents was dismissed by the writ court, the other contesting 38respondents suppressing the filing of the writ petition and its dismissal, had filed a revision petition under Section 27 of the Evacuee Property Act before the Deputy Custodian General, New Delhi sometime in the year 1967 inter-alia questioning the Notification dated 11.12.1952 declaring the `disputed lands' as Evacuee Property.
Though they succeeded before that authority, the same was short lived and the said order was revised by the Chief Settlement Commissioner at the instance of the allottees by his order dated 11.05.1983. The learned counsel further submits that instead of questioning the said order before a proper forum, they approached the State Government to revise the order by the Chief Settlement Commissioner and when the revision petition was returned, they approached the High Court by filing a writ petition to direct the State Government to invoke its power of `Suo-Moto' revision, which came to be rejected on 26.07.1988.
Therefore, the learned counsel submits that the time spent from 1983 till 1988 cannot be considered to be satisfactory explanation since they were seeking reliefs not in a manner provided by the law. The learned counsel submits that after about two years of the dismissal of the writ petition, they filed yet another Writ Petition No.17722 of 1990, inter-alia, seeking initially a 39 direction to respondent No.3 to conduct an enquiry into the question of title of disputed lands and also the correctness of the declaration of the said property as evacuee property, and again after almost seven years of filing of the wr
