TaxTMI 
TaxTMI 
2011 (5) TMI 906
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he 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. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 owner....
X X X X Extracts X X X X
X X X X Extracts X X X X
....otice 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. 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 a....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... 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 Pers....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ismissal 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 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 as....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o 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 lo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ssion 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n under Article 226 was the only remedy available, as Section 36 of the 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t 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 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 Ac....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 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), th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....asonable 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: (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 em....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 respondents 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 Proper....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e Chief Settlement Commissioner had allowed the revision petition filed by the allottees by setting aside the earlier order passed by the Deputy Custodian in the year 1979. He further submits that the contesting respondent thereafter had approached the State Government to initiate its suo- moto revisional powers to revise the order passed by the Chief Settlement Commissioner and since that was not done, they immediately filed a writ petition for appropriate direction and the said writ petition was disposed of only in the year 1988 and immediately thereafter, they had approached the High Court by filing a writ petition for appropriate reliefs. Therefore, he submits that firstly, there was no delay or laches on the part of the contesting respondents in approaching the authorities for redressal of their grievances, secondly, assuming there is some delay, the same has been satisfactorily explained and lastly, when there was manifest illegality in the proceedings of the authorities both under the Evacuee Property Act and the Displaced Persons Act, the same has been corrected by the learned Division Bench of the High Court and this Court need not disturb the finding of the High Court in ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....swering the aforesaid stand of the respondents in the writ petition, the Division Bench of the High Court refers to several orders passed by the authorities and then observes that "from what is narrated above, the petitioners cannot be found fault with for any inaction or lapse and they had been waging tireless legal battle since last 45 years. Further, they did not leave any chance in the litigation." Beyond this, the High Court has not stated anything with regard to the explanation offered by the petitioner in approaching the Court, even according to them, nearly after 45 years. The High Court has not recorded any finding whatsoever and ignored such a plea of far-reaching consequence. 60) In the present case, the respondents in the writ petition had raised a specific plea of delay, as a bar to grant relief to the petitioners. In our view, it was perhaps necessary for the Court to have specifically dealt with this issue. It is now well settled that a person who seeks the intervention of the High Court under Article 226, should give a satisfactory explanation of his failure to assert his claim at an earlier date. The excuse for procrastination should find a place in the petition f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 ri....
X X X X Extracts X X X X
X X X X Extracts X X X X
....11.12.1952 issued under Section 7 of the Evacuee Property Act. However, Sri Ranjit Kumar, learned Senior counsel for the contesting respondents to get over this legal hurdle, submits that the writ petition was filed by Mandal Anjaiah,who was one of the legal representatives of late Mandal Buchaiah and the judgment and order passed by the Writ court cannot be put against the other legal representatives of the Mandal Buchaiah. The learned senior counsel also submits that after disposal of the writ petition, the other heirs of late Mandal Buchaiah had preferred a revision before the Deputy Custodian General, New Delhi under Section 27 of the Evacuee Property Act and the same was not only entertained but necessary relief was also granted to him. Therefore, the Judgment and order of the High Court would not affect the rights of the other legal heirs of late Mandal Buchaiah. 64) Before we consider the contentions of learned counsel, let us first notice the settled legal position in matters like the present case. 65) In Shakur Basti Shamshan Bhumi Sudhar Samiti v. Lt. Governor, NCT of Delhi (2007) 13 SCC 53, the order passed by the High Court for closure of cremation ground, in confo....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and upheld by this Court in Hindustan Construction Co. Ltd. and Anr. v. Gopal Krishna Sengupta and Ors., (2003) 11 SCC 210. This Court has held: "25. The question still remains whether, on facts of this case, the direction given in the Order dated 19th October, 2000 can be maintained. In the application there was no prayer to examine Pritika Prabhudesai. The prayer was to quash the proceedings and start trail afresh. There is no provision in law which permits this. Thus the application could not be allowed. Undoubtedly the High Court has proceeded on the footing that this evidence is essential and necessary. Section 311 of the Criminal Procedure Code permits taking of evidence at any stage. The High Court undoubtedly felt that it was in the interest of all parties that necessary evidence be recorded at this stage itself. But the fact remains that the application for this very relief has been rejected on th Novemb er, 1997. No appeal or revision was filed against that order. The Order dated 6th Novemb er, 1997 has therefore become final. Once such a relief has been refused and the refusal has attained finality, judicial propriety requires that it not be allowed to be reopened. Th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ued a recovery certificate in favour of the Bank. However, against this, respondents did not prefer any appeal, instead filed writ petition before the High Court. The High Court has stayed the execution proceedings and directed the bank to consider the respondent's case in terms of RBI guidelines. Aggrieved by this, appellant Bank approached this Court against the order of the High Court. This Court observed that when a decree passed by the DRT had attained finality, then the proceedings for execution of decree cannot be stayed by High Court in an independent writ petition. This Court further held: "13. The High Court, therefore, erred in issuing a writ of mandamus directing the appellant bank to declare the respondents' account as NPA from 31st March, 2000 and to apply the RBI Guidelines to their case and communicate the outstandings which shall be recoverable by quarterly instalments over a period of two years. The later part of the order passed by the High Court wherein a direction has been issued to stay the recovery proceedings and the recovery certificate issued against the respondents has been cancelled is also wholly illegal as the decree passed by the DRT had atta....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Evacuee Property, Bombay, was arrayed as one of the respondents. That only means, he was fully aware of the Judgment and order passed by the Writ Court. In the revision petition filed by the other legal representatives of late Mandal Buchaiah, he was also arrayed as one of the respondents. However, a perusal of the order passed by Deputy Custodian General does not clearly indicate whether it was brought to his notice the Judgment and order passed by the High Court, yet again, in the order by the Collector-cum-Deputy Custodian dated 28.5.1979, there is no reference to the Judgment and order passed by the High Court. However, in the order passed by Chief Settlement Commissioner of Evacuee Property, there is reference to the judgment of the High Court. The said authority while setting aside the order passed by Collector-cum-Deputy Custodian as nullity, the reliance is not placed on the judgment and order passed by the High Court. In the subsequent Writ Petition filed, the respondents therein, in their Counter Affidavit had specifically contended that the notification dated 11.12.1952 has become final in view of the judgment and order passed by the High Court in Writ Petition No. 1....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed 11.12.1952. Therefore, it may not be correct to say that the court had rejected the writ petition only on the ground that the petitioner without availing the alternate remedy provided under the Act, could not have filed the writ petition. We hold that the writ petition was dismissed by the High Court not only on the ground that the petitioner had failed to avail the remedy under the Act, but also on the ground that the petitioner could not have questioned the notification dated 11.12.1952 at a belated stage. Therefore, in our view, the approach of the Division Bench of the High Court was not justified in entertaining a writ petition on the very issue, which had attained finality in an earlier proceeding. This view has nothing to do with the Principle of res judicata nor are we saying Principles of res judicata would apply in the facts and circumstances of this case. We are only holding that when a competent court refuses to entertain a challenge made to a notification issued on 11.12.1952 in a writ petition filed in the year 1966, the High Court could not have entertained the writ petition on the same cause of action at a belated stage in a writ petition filed in the year 1990. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....onstructive Res judicata:- Learned counsel Shri. Mukund submits that the respondents herein for the first time in the writ petition filed in the year 1990 had raised a contention that the procedure prescribed under the Evacuee Property Act and the rules framed thereunder were not followed before notifying the lands in question as evacuee property. Though this 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 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. 77) In 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f this Court in the case of State of Orissa vs. Dr. Miss Binapani Dei and Ors. (1967) 2 SCR 625, Smt. Gunwant Kaur and Ors. vs. Municipal Committee, Bhatinda and Ors. (1969) 3 SCC 769, Om Prakash Vs. State of Haryana and others (1971) 3 SCC 792, Surya Dev Rai vs. Ram Chander Rai and Ors. (2003) 6 SCC 675 and ABL International Ltd. and Anr. Vs. Export Credit Guarantee Corporation of India Ltd. and Ors. (2004) 3 SCC 553. 80) The High Court in its writ jurisdiction, will not enquire into complicated questions of fact. The High Court also does not sit in appeal over the decision of an authority whose orders are challenged in the proceedings. The High Court can only see whether the authority concerned has acted with or without jurisdiction. The High Court can also act when there is an error of law apparent on the face of the record. The High Court can also interfere with such decision where there is no legal evidence before the authority concerned, or where the decision of the authority concerned is held to be perverse, i.e., a decision which no reasonable man could have arrived at on the basis of materials available on record. Where an enquiry into complicated questions of fact is nec....
X X X X Extracts X X X X
X X X X Extracts X X X X
....petition in the/High Court of Judicature at Allahabad under Article 226 and alternatively under Article 227 of the Constitution. It was heard by a learned Single Judge of the High Court. The High Court has set aside the judgment of the Appellate Court and restored that of the Trial Court. A perusal of the judgment of the High Court shows that the High Court has clearly exceeded its jurisdiction in setting aside the judgment of the Appellate Court. Though not specifically stated, the phraseology employed by the High Court in its judgment, goes to show that the High Court has exercised its certiorari jurisdiction for correcting the judgment of the Appellate Court." (84) In Karnataka State Industrial Investment and Development Corporation Ltd. (supra), while explaining the jurisdiction of the High Court in exercising its jurisdiction under Article 226 of the Constitution, has stated :- "The High Court while exercising its jurisdiction under Article 226 of the Constitution does not sit as an appellate authority over the acts and deeds of the financial corporation and seek to correct them. The Doctrine of fairness does not convert the writ courts into appellate authorities over admini....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ficacious by a suit, whether refusal to grant relief in a writ petition may amount to denying relief, whether the claim is based substantially upon consideration of evidence oral and documentary of a complicated nature and whether the case is otherwise fit for trial in exercise of the jurisdiction to issue high prerogative writs." (88) In ABL International Ltd. and another Vs. Export Credit Guarantee Corporation of India Ltd. and others (2004) 3 SCC 553, this Court has held :- "Therefore, it is clear from the above enunciation of law that merely because one of the parties to the litigation raises a dispute in regard to the facts of the case, the court entertaining such petition under Article 226 of the Constitution is not always bound to relegate the parties to a suit. In the above case of Smt. Gunwant Kaur (supra), this Court even went to the extent of holding that in a writ petition, if facts required, even oral evidence can be taken. This clearly shows that in an appropriate case, the writ court has the jurisdiction to entertain a writ petition involving disputed questions of fact and there is no absolute bar for entertaining a writ petition even if the same arises out of a co....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ench decision of this Court in Jafran Begum's case (supra). (91) Re : Whether the lands in question are evacuee property under Evacuee Property Act : Shri Mukund, learned counsel for the appellants, submits that the disputed lands belong to late Rahim Baksh Khan and after issuing notice to the sons of late Rahim Baksh Khan and after following the procedure prescribed under the Evacuee Property Act and the rules framed thereunder, the lands were notified as evacuee property by issuing notification dated 11.12.1952. Learned counsel further submitted that late Rahim Baksh Khan had the money decree against late Mandal Buchaiah and in execution of the court decree, Rahim Baksh Khan became the owner of the property and his name had been recorded in the Khatra Khatauni as owner of the said lands. The entry so made in the revenue records was not questioned by anybody including late Mandal Buchaiah during his lifetime. It is further submitted that the records of the execution petition was not traceable since the matter is 60 years old and they have also not been placed on record by the contesting respondents. Therefore, in view of the entries made in the Revenue records, late Rahim B....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ribed under the Act had been followed before issuing the notification under the Evacuee Property Act. (92) 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 app....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 this regard. (94) Re : Effect of acquisition and Distribution of the Evacuee Propety under the Displaced Persons (Compensation and Rehabilitation) Act, 1954. The contention of the learned counsel Shri Mukund is that once the notification under Section 12 of the Displaced Property Act is issued and the lands are acquired for re-distribution, no proceedings can lie under the Evacuee Property Act. Per contra, learned senior counsel Shri Ranjit Kumar would submit this can be so, provided notification issued under Evacuee Property Act is valid and legal. Shri Mukund, learned counsel has placed reliance on Major Gopal Singh and Others. vs. Custodian, Evacuee Property, Punjab (1962) 1 SCR 328, Basant Ram vs. Union of India (1962) Supp. 2 SCR 733 and Da....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e notification made under that Section did not have the effect of extinguishing the petitioners' rights in the houses as they had never been declared evacuees. (99) In Ebrahim Aboobaker vs. Tek Chand Dolwani [1953] SCR 691, wherein the Court has stated that it is well established and not disputed that no property of any person can be declared to be evacuee property unless that person had first been given a notice under Section 7 of the Act. (100) In Nasir Ahmed vs. Assistant Custodian General, Evacuee Property, U.P. Lucknow and Another [1980] 3 SCR 248, it is held, that Section 7 of the Evacuee Property Act required the custodian to form an opinion that the property in question was evacuee property within the meaning of the Act before any action under that Section was taken. Under Rule 6 of the Administration of Evacuee Property (Central) Rules, 1950, the custodian had to be satisfied from information in his possession or otherwise that the property was prima-facie evacuee property before a notice was issued. (101) To answer this issue, we are required to notice certain provisions of both the Acts to arrive at a finding whether both the Acts operate independent of each....
X X X X Extracts X X X X
X X X X Extracts X X X X
....uee 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. (103) The Displaced Persons Act provides for payment of compensation and rehabilitation grants to displaced persons and for matters connected therewith. The Sections which require to be noticed for the purpose of this case are Sections 12 and 24 of the Displaced Persons Act. Section 12 of the Act authorizes the Central Government to acquire evacuee property for rehabilitation of the displaced persons. Section 24 of the Act vests power in the Chief Settlement Commissioner to set aside or vary any order passed by any of the officers named in that sub-section at any time, if the Chief Settlement Commissioner is not satisfied about the legality or propriety of such order. (104) To appreciate and resolve the controversy raised in these appeals, it would be useful to extract the relevant Section 12 which reads as under: "12. Power to acquire evacuee property for rehabilitation of displaced persons--(1) If the Central Governme....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l encumbrances. The pre-requisite for acquiring property under Section 12 is that it must be evacuee property as defined under Section 2 (f) of the Act. The consequence of issuing notification under Section 12 of the Act would denude the powers of the Custodian under Evacuee Property Act. As soon as the notification is published, property ceases to be evacuee property. This Court in the case of Haji Siddik Haji Umar and Others. Vs. Union of India (1983) 1 SCC 408, has held "that the publication of a notification under Section 12 extinguishes the right, title or interest of the evacuee in the evacuee properties. By virtue of Section 12(2) they vest absolutely in the Central Government free from all encumbrances. The only relief available to an evacuee is compensation in accordance with such principles and in such manner as may be agreed upon between the two countries. The jurisdiction of the Court to consider any orders passed by the Custodian or any action taken by him would not be barred if the orders passed or the action taken was without jurisdiction. But, if a party succeeds in establishing that the action taken or the orders passed were outside the purview of the Act, then, th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt 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. (111) To sum up, our conclusions are : (I) The High Court ought not to have ....