TaxTMI 
TaxTMI 
1984 (9) TMI 307
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.... petitioner, who had been appointed guardian of the petitioner under the Guardians and Wards Act, 1890, after obtaining the permission of the District Judge executed a sale deed on 27th August, 1963, in respect of certain agricultural plots of which the petitioner was the tenure-holder in favour of Gomati and Bachchan, respondents 3 and 4. These plots were situated in three villages-Khajuri, Harpur alias Dubaria and Sisai, Pargana Hasanpur Maghar, Tehsil Bansgaon, district Gorakhpur. Subsequently in the year 1965 Ram Deo, maternal uncle of the petitioner, was appointed guardian of the petitioner in place of Smt Murta. After obtaining the permission in this behalf from the District Judge Ram Deo instituted a suit in the year 1965 in the Court of the Munsif for cancellation of the sale deed aforesaid. The suit was decreed by the Munsif. Against that decree an appeal was preferred by respondents 3 and 4. During the pendency of that appeal the three villages where the plots sold by Smt. Murta in favour of respondents 3 and 4 were situate were brought under consolidation operations. Three objections were filed by the petitioner inasmuch as the plots sold were situate in three villages. ....
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....oidable. The petitioner thereafter made' an application before the Deputy Director of Consolidation for setting aside the order dated 21st June, 1974, on the ground that the said order was an ex parte one. According to him on the date fixed for hearing in the revisions before the Deputy Director of Consolidation he could not appear on account of his illness with the result that the revisions were decided in his absence. The Deputy Director of Consolidation, however, dismissed the said application by his order dated 23rd July, 1974. It is these two orders dated 21st June, 1974, and 23rd July, 1974, passed by the Deputy Director of Consolidation which are sought to be quashed in the present writ petition. 6. In regard to the order dated 21st June, 1974, counsel for the petitioner submitted that the Deputy Director of Consolidation erroneously took the view that the question about the validity of the sale deed could not be gone into by the consolidation authorities. It was urged that the order abating the appeal filed by respondents 3 and 4 against the decree of the Munsif in the suit for cancellation of the sale deed along with the said suit under Section 5 of the U. P. Consol....
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..... 427 of 1969 holding that the Consolidation Authorities had jurisdiction over the matter would operate as res judicata and preclude respondents 3 and 4 from urging that the consolidation authorities did not have the jurisdiction over the matter in view of the decision of the Supreme Court in the case of Gorakh Nath Dube [1974] 1 SCR 339 (supra). 9. A Division Bench of this Court in the case of Dalip Singh AIR 1976 All 433 (supra) even after noticing the decision of the Supreme Court in the case of Gorakh Nath Dube supra) has held : - "It has been seen that the suit filed by the respondents covered both the sale deeds. The suit was for cancellation. It was abated under Section 5 of the Consolidation of Holdings Act. Section 5 aforesaid applies when a Court finds that in view of Section 49 of the Act, a regular suit is not maintainable because the points for adjudication can be adjudicated upon by the Consolidation Authorities. The necessary effect of this order of abatement was that subject-matter of the suit namely, the validity of the two sale deeds, could be adjudicated upon by the Consolidation Authorities. It is well settled That a decree or order which has become ....
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....for this conclusion. 14. Even on a plain reading of the decision of the Supreme Court in the case of Mathura Prasad (supra) it is apparent that what has been emphasised in that case is that no Court by its erroneous decision on a pure question of law in regard to its jurisdiction can either refuse to exercise the jurisdiction which according to the rule declared by the legislature vests in it nor can it assume jurisdiction which does not vest in it. In such a case what is of significance is that the Court does not decide a question of law simpliciter but a question of law on the decision of which depends its jurisdiction to take cognizance of the suit or proceedings. The erroneous decision on such a question of law by such a Court has been held not to operate as res judicata because the Court by its own erroneous decision is either abdicating jurisdiction or clutching it contrary to the rule declared by the legislature in this behalf. In the instant case the decision of the Civil Court referred to above would fall in this category and would, therefore, not operate as res judicata. 15. The decision of this Court in Civil Misc. Writ Petition No. 427 of 1969, however, stands on ....
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....the suit or proceeding and if it is found to be without jurisdiction or if there is an error of law apparent on the face of the record, the judgment or order is quashed. This Court after quashing the order cannot substitute its own order or decree for the order or decree impugned but must send back to the Court or authority concerned for deciding the case in accordance with law declared by it. The executable order with regard to the rights of the parties in dispute in such a case is not the order of this Court passed in the Writ Petition but the decision ultimately given by the Court or authority of which the order was in challenge. If, on the other hand, the petition for a writ is dismissed again, it is the order of the Court or authority concerned which was impugned that decides the rights of the parties in dispute. It was held by the Supreme Court in [1966] 3 SCR 198 (supra) that : "A petition to the High Court invoking this jurisdiction is a proceeding quite independent of the original controversy. The controversy in the High Court, in proceedings arising under Article 226 ordinarily is whether a decision of or a proceeding before, a Court or Tribunal or Authority, sho....
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....s judicata they cannot be treated as irrelevant or inadmissible even in dealing with fundamental rights in petitions filed under Article 32. The binding character of judgments pronounced by courts of competent 'jurisdiction is itself an essential part of the rule of law, and rule of law obviously is the basis of the administration of justice on which the Constitution lays so much emphasis. On general considerations of public policy there seems to be no reason why the rule of res judicata should be treated as inadmissible or irrelevant in dealing with petitions filed under Article 32 of the Constitution. It is true that the general rule can be invoked only in cases where a dispute between the parties has been referred to a Court of competent jurisdiction, there has been a contest between the parties before the Court, a fair opportunity has been given to both of them to prove their case, and at the end the Court has pronounced its judgment or decision. Such a decision pronounced by a Court of competent jurisdiction is binding between the parties unless it is modified or reversed by adopting a procedure prescribed by the Constitution. 19-20. In Phool Chand v. Chandra Shanker....
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....the ground that it was viola live of Article 14 of the Constitution and that for this reason the Special Judge had no jurisdiction to hear the case and that the case had to be disposed of by regular criminal courts. This petition was heard by a Full Bench of the High Court and by judgment dated 4th April, 1952, (reported in AIR 1952 Cal 644 ) the writ petition was allowed and Section 4(1) of the aforesaid Act was struck down as unconstitutional. The learned Judges held that the special judge had no jurisdiction to try the case and they directed that the accused be held as under trial prisoners pending retrial according to law. 24. The correctness of the law laid down by the High Court in regard to the jurisdiction of the special judge on the ground that Section 4 of the aforesaid Act was unconstitutional came up for consideration before the Supreme Court in Kedar Nath v. State of West Bengal 1953 CriLJ 1621. The law laid down by the High Court in the case of Hemant Kumar 1966 CriLJ 805 was disapproved by the Supreme Court. 25. Against an order passed in subsequent proceedings against Hemant Kumar wherein the question raised was whether the Special Judge had jurisdiction to ta....
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....athura Prasad [1970] 3 SCR 830 (supra). If the distinction pointed out above is kept in mind, namely, that in the case of Mathura Prasad (supra) the Supreme Court was dealing with an erroneous decision on a question of jurisdiction given by a Court which by its said decision was either refusing to exercise jurisdiction vested in it or assuming jurisdiction not vested in it. It was not dealing with a decision of the High Court under Article 226 of the Constitution regarding jurisdiction of a subordinate court or tribunal. 29. Secondly, even if some inconsistency may be there this Court is, on the facts of the instant case, bound to follow the decision of the Supreme Court in the case of State of West Bengal v. Hemant Kumar 1966 CriLJ 805 (supra) the same having been rendered by a Bench of four Hon'ble Judges in preference to the decision in the case of Mathura Prasad (supra) the same having been rendered by a Bench of three Hon'ble Judges. This is so in view of the decision of the Supreme Court in the case of Suite of U. P. v. Ram Chandra (1977) ILLJ 200 SC where it was held (at p. 2556) : "It is also to be borne in mind that even in cases where a High Court find....
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....ourt operated as res judicata and could not be reopened before the Board of Revenue or in appeal against its order. 34. Munshi Muzbool Raza v. Hasan Raza AIR 1978 SC 1398 was a case where Muzbool Raza appellant had filed a suit in the court of Munsif against the respondent for possession over certain agricultural plots. The suit was resisted by the respondent but was decreed by the Munsif. That judgment was confirmed in appeal by the District Judge. The respondent filed a second appeal before this Court. While the second appeal was pending the appellant was directed to take recourse to consolidation authorities in regard to his alleged rights. He exhausted those remedies wherein the ultimate decision was against him. He challenged the decision in those proceedings by filing a writ petition in this Court but the writ petition failed. The second appeal filed by the respondent against the decree passed in favour of the appellant in the suit filed by him was allowed by this Court. Against this decree the appellant filed an appeal by Special Leave in the Supreme Court which was dismissed. It was held by the Supreme Court (para 7) : - "The other difficulty in the way of the a....
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....The principles of law laid down in the cases cited by counsel for respondents 3 and 4 in this behalf are well settled but apparently they have no relevance so far as the facts of the instant case are concerned and consequently we do not consider it necessary to refer to those cases in detail. 37. Counsel for respondents 3 and 4 also brought to our notice the decision of a learned single Judge of this Court in Anant Ram Gupta v. Asstt. Director 1979 Rev. Dec 40 : (AIR 1979 NOC 125). In that case one of the questions involved was about the import of the expression 'possession' used in Clause (a) of Section 18(1) of the U. P. Zamindari Abolition and Land Reforms Act. An earlier writ petition filed by the petitioners in 1968 was allowed by this Court in 1969 and an order passed by the Deputy Director of Consolidation in the revision was quashed and the case was remanded to him for deciding the revision afresh. The Deputy Director of Consolidation decided the revision on 4th December, 1970, and this order was challenged in Writ Petition No. 1948 of 1971. The writ petition remained pending for about seven years and was decided on 23rd August, 1978. During the pendency of the w....