REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 15571-15572 OF 2017 (ARISING OUT OF SLP (CIVIL) NOS. 18755-18756 OF 2013)

KSB ALI .....APPELLANT(S)

VERSUS

STATE OF ANDHRA PRADESH & ORS. .....RESPONDENT(S)

WITH

CIVIL APPEAL NOS. 15576-15578 OF 2017 (ARISING OUT OF SLP (CIVIL) NO. 27299-27301 OF 2013)

CIVIL APPEAL NO. 15582 OF 2017 (ARISING OUT OF SLP (CIVIL) NO. 27434 OF 2013)

CIVIL APPEAL NO. 15579-15581 OF 2017 (ARISING OUT OF SLP (CIVIL) NOS. 27561-27563 OF 2013)

CIVIL APPEAL NOS. 15583-15585 OF 2017 (ARISING OUT OF SLP (CIVIL) NOS. 38018-38020 OF 2013)

CIVIL APPEAL NOS. 15586-15588 OF 2017 (ARISING OUT OF SLP (CIVIL) NOS. 38022-38024 OF 2013)

CIVIL APPEAL NO. 15589 OF 2017 (ARISING OUT OF SLP (CIVIL) NOS. 38025 OF 2013)

CIVIL APPEAL NOS. 15591-15596 OF 2017 (ARISING OUT OF SLP (CIVIL) NOS. 9996-10001 OF 2015)

Civil Appeal Nos. 15571-15572 of 2017 Page 1 of 36 (arising out of SLP(C) Nos. 18755-18756 of 2013 – BATCH MATTERS)

CIVIL APPEAL NO. 15598 OF 2017 (@ SLP (CIVIL) NO. 26494 OF 2017

@ SLP (CIVIL) NO… CC1639 OF 2016)

CIVIL APPEAL NOS. 15573-15575 OF 2017  (ARISING OUT OF SLP (CIVIL) NOS. 19156-19158 OF 2013)

CIVIL APPEAL NO. 15597 OF 2017 (@ SLP (CIVIL) NO. 26493 OF 2017

@ SLP (CIVIL) NO….CC1132 OF 2016)

A N D

CIVIL APPEAL NO. 15590 OF 2017 (ARISING OUT OF SLP (CIVIL) NO. 1298 OF 2015)

J U D G M E N T

A.K. SIKRI, J.

Leave granted.   

2) Nawab Nusrat  Jung Bahadur-1  (Nusrat  Jung-I)  had purchased

1635 acres and 34 guntas of land in Kotham Kunta, also known

as Asad Nagar, which is now renamed as Kokapet village.  This

land was purchased way back in 19th Century, while sale deed

was registered sometime in the year 1852.  Nusrat Jung-I died

issueless  in  1875  and  his  widow  also  died  thereafter  on  10 th

October, 1916.  Nusrat Jung-I had two cousins, Nawab Ghulam

Hussain and Nawab Mohd. Sardar.  Disputes about the aforesaid

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land (hereinafter referred to as the ‘subject lands’) erupted almost

70  years  ago  and  after  protracted  litigation,  which  is  having

chequered history,  the said disputes have finally landed in this

Court.   Hundreds  of  persons  claiming  themselves  to  be  the

successors in interest of Nusrat Jung-I have led their claim on the

subject lands.  On the other hand, the state of Andhra Pradesh

claims that it is the State which is the legal owner of the property

in-question.

3) As mentioned above, these appeals have long history which has

been taken note of, in extenso,  by the High Court in its impugned

common judgment dated 18th July, 2012, whereby number of writ

appeals have been decided.  As the impugned judgment records

the chronology of the relevant facts correctly and no mistake is

pointed out by any of the counsel appearing before us in regard

to factual  narrative,  we can conveniently  and safely  reproduce

these facts from the said judgment.

FACTUAL EVENTS IN BRIEF:

3.1 Under  a  sale  deed  dated  17th Rabi  Awal,  1269  H  (1852  A.D.)

Nusrat Jung-1 purchased the schedule property, of an extent of

Ac.1635.35 gts., from the vendors, the five sons of Mir Jouhar Ali

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khan, son of Mir Hussain Ali Khan alias Asad Nawaz Jung (late),

the  wives  of  Mir  Jouhar  Ali  Khan  –  Imtiazunissa  Begum,

Hayatunissa Begum and the daughters of Riazunissa Begum (the

wife  of  Mir  Asad  Nawaj  Jung)  –  Navrooz  Begum  and  Moula

Begum.  The  property  then  known  as  Koutham  Kunta  and

thereafter as Asadnagar is presently Kokapet village.

3.2 Nusrat  Jung-1  died  issueless  around  1875  leaving  behind  the

widow – Rahimunnisa Begum, who died on 10-10-1916. Nusrat

Jung-1 had two paternal first cousins – Nawab Gulam Hussain

and Nawab Md. Sardar.

3.3 On 16th January, 1916 the entire properties of late Nusrat Jung-1

were taken over by Sarf-e-Khas Mubarak (the private secretariat

of  the Nizam) for  supervision.  A judicial  branch of  Sarf-e-Khas

Mubarak initiated succession inquiry which was later transferred

to  the  Court  of  Nazim  Atiyat  which  was  constituted  under

provisions of the 1952 Act.

3.4 In 1920 the heirs of Nusrat Jung-I represented to the Nizam for

grant  of  Kokapet  Jagir  in  their  favour.  By  a  Firman  dated

15thJamadeeussani–1339–H, the Nizam decreed rejection of the

representation  and  granted  only  maintenance  allowance,  on

compassionate grounds.

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3.5 In  1949,  Jagirs  were  abolished  under  the  Abolition  of  Jagirs

Regulation  and  in  1359F  the  A.P.  (T.A.)  Jagirs  (Commutation)

Regulation was enacted providing for interim allowance payable,

determination  of  commutation  and  abolition  of  Jagirs.  Then

followed the 1952 Act, providing for Atiyat enquiries.

3.6 The Atiyat Court to which inquiry was transferred, as pointed out

above, by its order, dated 15-02-1954 held that lands in Kokapet

village deserve to be confirmed as Madad-e-Maash (grant-in-aid)

in favour of heirs of the late Nusrat Jung-1; that though the land

enjoyed  by  the  holders  as  Madad-E-Maash  was  subsequently

constituted into a separate village; the Maash (the property) will

be deemed to have been continued only as Arazi (inam lands), is

confirmed as such and Kokapet was regarded as a village only

for administrative purposes.

3.7 The Atiyat Court also held that Kokapet was taken over by the

Government under the Abolition of Jagirs Regulation; this action

was  not  challenged  by  Maashadars  and  the  question  of

appointing Qabiz for lands included in the village does not arise.

In  respect  of  the  lands  in  Bagh-e-Asifnagar  (another  village

having lands of Nusurat Jung-1), the Atiyat Court held that each

of  Maashadars  (holders  of  the  property)  is  entitled  to  his

respective share and the extents being small the Collector should

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formulate proposals for  disposal  of  lands by sale  or  otherwise

after obtaining permission from the Government; should dispose

of the same and distribute the money among the Maashadars.

3.8 Gulam Mohammed and another, aggrieved by the decision of the

Atiyat Court dated 15th February, 1954 preferred an appeal to the

Board of Revenue, which was rejected by the order dated 24 th

September, 1954 and the order of the Atiyat Court was upheld.

The order of Atiyat Court was placed before the Revenue Minister

in the form of a note and approved by him on 22nd December,

1954.  The  Muntakhab  did  not  set  out  the  number  of  Sendhi

(excise)  trees  on  the  land  and  the  claimants  were  therefore

denied their consequent rights.

3.9 The  claimants  applied  to  the  Assistant  Nazim  Atiyat  for

amendment of the Muntakhab (for inclusion of Sendhi trees). The

application was rejected. Claimants then approached the Atiyat

Court  which  also  rejected  their  claim.  They  unsuccessfully

approached the Board of Revenue and thereafter filed W.P.No.

227 of 1960. On 1st April, 1963 this Court allowed the writ petition

and declared the claimants entitled to inclusion of income from

Sendhi  trees  in  the  Muntakhab,  directed  the  respondents  to

amend the Muntakhab and awarded Rs.3,980-4-0 as maash. In

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the  judgment  in  W.P.No.227  of  1960  the  High  Court  however

declined to grant the relief of restoration of the property.

3.10 One Mr. K.S.B. Ali (Mr. Ali) (claiming to represent 203 legal heirs

of  Nusrat  Jung-1)  approached  the  Government  several  times

seeking release of lands covered by the Muntakhab in favour of

the legal heirs.

3.11 Firoz  Khan  and  another  filed  O.S.No.512  of  1973  (originally

O.S.No.10 of 1967) for a declaration that they are the owners of

the plaint  schedule properties in  survey Nos.41,  42 and 43 of

Kokapet  Village.  J.H.  Krishna  Murthy  and  four  others  were

impleaded  as  defendants  in  this  suit.  Krishna  Murthy  was

impleaded as the GPA of the heirs of Nusrat Jung – I. Krishna

Murthy through his written statement claimed entitlement to the

lands on the strength of  the GPA granted by the heirs  of  late

Nusrat Jung – I and relied on the Muntakhab in support of the

case of the defendants. The plaintiffs also prayed for a permanent

injunction or in the alternative for recovery of possession of the

suit lands.

3.12 By the judgment dated 30th June, 1976, the Trial Court considered

the  entire  evidence  and  by  an  elaborately  reasoned  order

decreed the suit. The Trial Court concluded that the stand taken

by  the  defendants  was  incorrect  and  observed  that  the  two

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Firmans clearly established that the lands in question (Kokapet

lands) were Jagir lands; that the legal heirs of Nusrat Jung – I had

also admitted in cross-examination that some of them had filed

applications for restoration of the Jagir lands to the Nizam which

was rejected; that  the first  defendant (Krishna Murthy) had not

produced  any  evidence  to  establish  that  the  suit  lands  were

acquired by Nusrat Jung – I  under any purchase; and that the

legal heirs of Nusrat Jung – I were entitled only to commutation

amounts. This judgment became final as the appeal thereagainst

by the defendants was dismissed by this Court by the judgment

dated 11-12-1985 in C.C.C.A.No.142 of 1976.

3.13 170  persons  claiming  to  be  heirs  of  Nusrat  Jung-1  filed

W.P.No.20298 of 1993 for implementation of the Muntakhab as

confirmed by the Revenue Minister’s order dated 24th December,

1954 and for mutation of their names in respect of the lands in

Kokapet  village.  Reliance  was  placed  by  the  petitioners

(apparently  during  oral  hearing  of  the writ  petition)  on a  letter

dated  21-06-2000  addressed  by  the  CLR  to  the  Government

expressing an opinion that the Muntakhab must be implemented.

By  the  judgment  dated  09-07-2001  a  learned  single  Judge

disposed of the writ petition directing the Government to consider

the report of the CLR and take further action in accordance with

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law, within six months. Thereafter several representations were

made, including by Mr. Ali.

3.14 On  15th April,  2002  the  Principal  Secretary  to  Government,

Revenue Department, considered the order of this Court (dated

09-07-2001  in  W.P.No.  20298  of  1993)  and  rejected  (by  an

elaborately reasoned order) the request of Mr. Ali for release of

the lands as per the Muntakhab. By a subsequent Memo dated

6th May,  2004,  however,  the  order  dated  15th April,  2002  was

withdrawn, again by the Principal Secretary to the Government.

The Memo dated 6th May, 2004 records no reasons whatsoever

for rescinding the earlier elaborate order and was issued pursuant

to representation of Mr. Ali for reconsideration of his request, for

implementing  the  Muntakhab.  The Memo dated  6th May,  2004

merely states: Government after careful examination of the issue

as per the Act and Rules in force, hereby withdraw the orders

issued  in  the  Government  Memo  1stcited  and  the  CCLA was

directed to instruct the Collector, Ranga Reddy District and the

concerned  authorities  to  implement  the  orders  of  Atiyat  Court

issued in Muntakhab No. 57 of 1955.

3.15 A Memo dated 31-07-2004 reiterated the order dated 06-05-2004

and the CLR was directed to implement the earlier Memo dated

06-05-2004.  In  turn,  the  CLR  on  07-10-2004  directed  the

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Collector, Ranga Reddy District to ensure communication of the

Memo  dated  31-07-2004  to  the  Mandal  Revenue  Officer,

Rajendranagar for handing over possession of the open land as

per the M.R.O.’s report dated 28-08-1984 and report compliance.

3.16 Vide Memo dated 21st May, 2005 and G.O. Ms. No. 1084 dated

6th June,  2005  the  whole  issue  was  revisited  and  the  earlier

memos dated 6th May,  2004 and 31st July,  2004.  In  this  order

(setting out elaborate reasons) it was concluded that the finding

of the Atiyat Court (in its order dated 15-02-1954) (that Kokapet

village was taken over by the Government under the Abolition of

Jagirs Regulation and the said action was not challenged by the

Maashadars and appointment of Qabiz for the lands included in

the  village  does  not  arise),  destroys  the  claim  of  the

representationists,  of  the  lands  being  Arazi  Maktha;  that

according to provisions of the Abolition of Jagirs Regulation read

with  the  Jagir  (Commutation)  Regulations  1359-F,

Jagirdar/Makthadar or his successor on the date of taking over of

Jagirs  were  entitled  to  only  commutation  amounts,  excepting

lands  which  were  under  direct  and  personal  cultivation  of  the

Jagirdars or their successors as home farm lands under Section

17 of the Abolition of Jagirs Regulation; that there are no home

farm lands in the name of the claimants as per the revenue and

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survey  settlement  records  maintained  from 1355-F (1945 AD);

that open land would not fall within the definition of ‘Home Farm

Lands’ as per provisio to Section 17 of the Regulation; that the

Muntakhab was issued and acted upon by drawing commutation

from the Nizam-e-Atiyat; and therefore there was no basis for any

further claim in the matter.  This Memo also concluded that the

issue was finally  decided by the 15-04-2002 order issued with

approval of the competent authority; and that as the matter was

finally decided, the subsequent orders dated 06-05-2004 and 31-

07-2004 were without jurisdiction and competence.

3.17 Thereafter,  tenders  were  issued  by  the  Hyderabad  Urban

Development Authority for sale of Ac.100-00 in Kokapet village

which was part  of  the subject  lands and Mr.  Ali  filed W.P.  No.

14439  of  2006  challenging  the  said  tenders  and  sought  a

declaration that the said authority had no right in the property of

the petitioners and the auction and sale process was illegal.

3.18 A learned  single  Judge  on  14th July,  2006  dismissed  the  writ

petition ruling that under Article 226 of the Constitution an inquiry

as  to  questions  of  title  in  immoveable  property  cannot  be

considered and observed that  the petitioner may approach the

Civil Court for appropriate declaration and injunction.

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3.19 Thereagainst  W.A.No.  887  of  2006  was  filed  by  Mr.  Ali.  This

appeal was dismissed by a learned Division Bench of the High

Court, by orders dated 26-10-2007, after contest. Though, SLP

was filed thereagainst in this Court, the writ petitioner/appellant –

Mr. Ali sought leave to withdraw W.P.No.14439 of 2006, W.A.No.

887 of 2006 and for rescinding the order in the writ petition and

writ appeal. This request was granted by this Court with liberty to

Mr. Ali to pursue “appropriate remedy”, leaving the issues open.

3.20 However,  after  the  aforesaid  order  of  this  Court  (dated  13 th

December, 2007) several writ petitions were filed seeking reliefs

already adverted to and these were tagged on to W.P.No. 10084

of  2006,  earlier  filed  by  Mr.  Ali  and  were  disposed  of  by  the

common judgment dated 02-06-2009 by a Single Judge of the

High Court.

4) By the aforesaid  common judgment  dated 2nd June,  2009,  the

learned single Judge invalidated the memo dated 21st May, 2005

on the ground that it was in violation of principles of natural justice

and directed the State to pass fresh orders after issuing notice to

the writ petitioners enabling the petitioners to urge all the grounds

before  the  State.  The  order  in  G.O.Ms.No.1084,  dated  06-06-

2005 was upheld with a caveat that as and when rights of the

petitioners in respect of the property in question are determined in Civil Appeal Nos. 15571-15572 of 2017 Page 12 of 36 (arising out of SLP(C) Nos. 18755-18756 of 2013 – BATCH MATTERS)

their  favour  they  may  pursue  remedies  in  this  behalf.  It  was

clarified  that  the  judgment  shall  not  be  treated  as  a

pronouncement  or  adjudication  of  any  dispute  or  question

involved  in  the  matter  and  the  legal  representatives  of  Late

Nawab Nusrat  Jung Bahadur-I  or their  authorized agent are at

liberty  to  pursue  the  matter  with  the  Government;  and  that

disputes, if any, among them (the legal representatives) could be

agitated before a competent forum.

5) Challenging the aforesaid judgment of the learned Single Judge,

writ appeals were filed primarily by the State of Andhra Pradesh

as  well  as  Hyderabad  Metropolitan  Development  Authority

(HMDA).  It is significant to mention that as far as appellants in

these  appeals,  who claim themselves  to  be  the  legal  heirs  of

Nusrat  Jung-I  and  rightful  owner  of  the  subject  lands,  are

concerned, they did not challenge the order of the Single Judge in

respect of those findings which had been rendered against them.

Before  we  take  note  of  the  salient  features  of  the  decision

rendered  by  the  Division  Bench  it  would  also  be  apposite  to

remark that the core issue is as to whether the subject lands in

Kokapet village belong to the State or  it  is  the purported legal

heirs of Nusrat Jung who are entitled thereto.  The chronology of

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events narrated above would also make it clear that the claimants

have primarily rested their claim on the basis of the order dated

15th February, 1954 passed by the Atiyat Court1 which held that

the subject lands deserved to be confirmed as Madad-e-Maash

(grant-in-aid) in their favour.  They also argued that the aforesaid

order  had  been  approved  by  the  Revenue  Minister  on  22nd

December,  1954  and,  thus,  rights  in  their  favour  had  got

crystalised.   As  per  them,  it  is  the  Atiyat  Court  which  was

competent to decide such a dispute and once the rights of the

appellants  were  recognised  by  the  Atiyat  Court,  the  State

Government  was  bound  thereby.  Further  submission  of  the

appellants was that memos dated 21st May, 2005 and G.O. dated

6th June,  2005,  no  opportunity  of  hearing  was  given  to  the

appellants and, therefore, the said memo and G.O. were violative

of principle of natural justice (which contention was accepted by

the learned Single Judge as well).

ISSUE BEFORE THE HIGH COURT:

6)  In the aforesaid circumstances, the Division Bench noted that the

generic issue which fell for consideration was as to whether the

learned Single Judge was right in invalidating the said Memo and

1  . Through Mr. Raghupati, Advocate appearing for some of the appellants has taken  different stance before us, which is noted later at an appropriate stage.

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G.O., thereby directing the Government to reconsider the issue

after  affording an opportunity  to  the appellants herein.   It  was

because of the reason that insofar as that part of the decision of

the learned Single Judge,  rejecting substantive reliefs,  namely,

implementation of the Muntakhab, mutation of their names in the

Revenue records; restoration of possession of the subject lands

and  declining  to  invalidate  G.O.  dated  6th June,  2005  are

concerned, the appellants herein never challenged that part of the

order.

THE IMPUGNED JUDGMENT :  

7) After taking note of the aforesaid generic issue which arose for

consideration, the High Court, at the outset, discussed the validity

of the direction issued by the learned Single Judge directing the

Government  to  reconsider  the issue after  giving opportunity  of

hearing to the appellants.  In this behalf, it noted that the seminal

dispute was as to whether land in-question belonged to the legal

heirs of Nusraj Jung-I or the State.  Having regard to this nature

of  dispute,  the High Court  has concluded that  such  a  dispute

cannot be decided by the Government inasmuch as deciding the

aforesaid lis between the parties is a judicial function and such a

judicial  power,  as per our constitutional  scheme, rests with the

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courts  and not  the Executive.   Therefore,  order  of  the learned

Single  Judge remanding the matter  to  the Government  for  de

novo consideration was of no legal consequence.

8) Thereafter, the High Court delineated various other issues which

arose for consideration and discussed those issues at length and

answered  the  same.   A perusal  of  the  judgment  shows  that

deliberations were undertaken on the following questions:

(i) What is the ‘appropriate remedy’ for Mr. Ali to pursue?

(ii) Whether  the  impugned  memo  dated  21st May,  2005  is

unsustainable for violation of principles of natural justice?

(iii) What was the import and effect of memos dated 15 th April,

2002,  6th May,  2005  and  31st July,  2004  as  well  as

impugned memo dated 21st May, 2005?

(iv) Who are the appellants?

9) Insofar as question no. (i) is concerned, in essence, it  touched

upon the locus standi of Mr. Ali to file the writ petition.  The High

Court noted that this Court vide orders dated 13 th February, 2007

had  disposed  of  the  Special  Leave  Petition  filed  by  Mr.  Ali

permitting him to withdraw the writ  petition No. 14439 of  2006

filed by him in the High Court thereby setting aside the judgments

of the High Court in the said writ petition as well as in the writ

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appeal no. 887 of 2006 preferred thereagainst and had accorded

permission  to  Mr.  Ali  ‘to  take  appropriate  remedy’.   The  High

Court thereafter proceeded to discuss what would be meant by

such ‘appropriate remedy’ which was accorded to Mr. Ali.  In this

process, the High Court referred to and relied upon judgment of

this Court in BSNL vs. Telephone Cables Ltd.2l   and made the

following remarks on the said issue:

“In the light of the above facts and circumstances: the substantial  similarity  of  the  two  writ  petitions (W.P.No.10084  of  2006  and  14439  of  2006);  the conduct of Sri Ali in having withdrawn the writ petition while  obtaining  effacement  of  the  elaborate  and painstaking  judgment  in  the  writ  appeal,  without determination  of  the  merits  of  that  judgment  by  the Supreme Court;  and then pursuing W.P.No.10084 of 2006 (a writ  petition filed earlier to W.P.No.14439 of 2006), constitutes in our considered view an abuse of the  process  of  law;  wanton  litigative  behaviour, pejorative to the larger public interest, involving casual and reckless commandeering of scarce judicial  time. In the light of the observations of the Supreme Court in BSNL,  Sri  K.S.B.  Ali  must  be  held  disentitled  to pursue remedies under Article 226 of the Constitution in respect of  the grievances presented in his  earlier writ  petition (W.P.No.14439 of 2006 and W.A.No.887 of 2006). We hold accordingly.”

10) Insofar as question no. (ii) is concerned, which discussed

the validity of the judgment of the Single Judge holding impugned

memo to be unsustainable for  violation of  principles of  natural

justice, the High Court pointed out that through this memo the

earlier  memos  dated  6th May,  2004  and  31st July,  2004  were

2   (2010) 5 SCC 213 Civil Appeal Nos. 15571-15572 of 2017 Page 17 of 36 (arising out of SLP(C) Nos. 18755-18756 of 2013 – BATCH MATTERS)

rescinded.  However,  there  was  no  question  of  giving  any

opportunity of hearing to the appellant because of the reason that

memos  dated  6th May,  2004  and  31st July,  2004  remained

uncommunicated and, thus, did not confer or create any rights in

favour of the appellants.  Consequently, these could be withdrawn

without notice, since no rights flew from uncommunicated order.

For  arriving at  this  conclusion,  the High Court  has extensively

dealt with the provisions of Article 166(1) of the Constitution and

the manner in which the aforesaid provision is dealt with by this

Court in the following judgments:

(i) Dattatreya Moreshwar Pangarkar vs. State of Bombay3

(ii) John vs. State of T.C.4

(iii) MRF Ltd. vs. Manohar Parrikar and others5  

11)   Relying upon the aforesaid judgments, the High Court held

that Business Rules framed under the provisions of Article 166(3)

of the Constitution are mandatory in nature and have to be strictly

adhered to.  The High Court also took note of another judgment

of  this  Court  in  Bachhittar  Singh  v. State  of  Punjab  and

another6 , on the basis of which it concluded that merely writing

something on the file did not amount to an order and, therefore,

3  AIR 1952 SC 181 4  (1955) 1 SCR 1011 5  Vol IX(2010)SLT580 6  AIR 1963 SC 395 Civil Appeal Nos. 15571-15572 of 2017 Page 18 of 36 (arising out of SLP(C) Nos. 18755-18756 of 2013 – BATCH MATTERS)

noting in the file by the Revenue Minister, without further action

thereupon or issuing another order in the name of the Governor,

as required by Article 166(1) of the Constitution, did not have any

force in law. In the process, reference was also made to another

judgment of  this Court  in  Shanti  Sports Club and another  v.

Union of India and others7 wherein this Court held that notings

recorded in official files by officers of the Government at different

levels  even  of  Ministers,  do  not  become  decisions  of  the

Government  unless  same  are  sanctified  and  acted  upon  by

issuing an order in the name of the President or the Governor as

the case may be, authenticated in the manner provided in Articles

77(2) and 166(2); and communicated to affected persons.  The

High Court also referred to many other judgments in support of its

aforesaid finding.

12) Treating the aforesaid principle of law as binding precedents

contained in the aforesaid judgments, the High Court concluded

that none of the memos dated 15th April, 2002, 6th May, 2004, 31st

July, 2004 and 21st May, 2005 would lawfully be considered as

constituting Executive decisions/order  of  the State Government

since they were not authenticated in the manner mandated by

Article 166 of the Constitution.  Further letter dated 6 th April, 2004

7  (2009) 15 SCC 705 Civil Appeal Nos. 15571-15572 of 2017 Page 19 of 36 (arising out of SLP(C) Nos. 18755-18756 of 2013 – BATCH MATTERS)

and memo dated 31st July, 2004 were, in any event, inoperable or

inexecutable as they created no rights in favour of the appellants.

13) At  the  end,  the  High  Court  considered  the  status  of  the

appellants while answering the question ‘who are the appellants?’

Pointing out that all  the aforesaid memos as well as impugned

memo, flow out of representations made by Mr. Ali who claimed

himself to be the sole representative of the legal heirs of Nusrat

Jung-I,  the  High  Court  has  examined  the  locus  of  Mr.  Ali  to

espouse the cause of others and found that he could not  produce

anything on record to show as to how he was authorised to plead

the case of  the purported legal  representatives or  the heirs of

Nusrat  Jung-I.   The  High  Court  further  noted  that  other  writ

petitions  were  filed,  by  other  appellants,  for  implementation  of

memos dated 6th May, 2004 and 31st July,  2004 which memos

were  issued  only  on  the  basis  of  Mr.  Ali’s  representation.

Therefore, none of the other appellants could legitimately assert a

grievance  that  impugned  memo  was  issued  without  notice  or

opportunity  to  them.   According  to  the  High  Court,  there  was

absence of  clarity  as  to  whether  Mr.  Ali  and  or  the  other  writ

petitioners were even the legal  heirs of  Nusrat  Jung-I  or  were

lawfully  authorised to  represent  any legal  heirs  and,  therefore,

Civil Appeal Nos. 15571-15572 of 2017 Page 20 of 36 (arising out of SLP(C) Nos. 18755-18756 of 2013 – BATCH MATTERS)

none of the appellants had any locus to litigate.

14) After answering the questions in the manner stated above,

the High Court has summarised the position as under:

“SUMMARY OF OUR CONCLUSIONS:

(a)   Neither the State nor any Officer of the State, including  the  Principal  Secretary  or  the  Special Chief  Secretary  to  the  Government,  Revenue Department is conferred judicial or quasi judicial jurisdiction, power or authority, either as Court, a Tribunal  or  a  persona  designata,  to  adjudicate disputed questions of title to immovable property, even  where  one  of  the  competing  claimants  to such title is the State;

(b)  Consequent on conclusion (a) supra, none of the instruments/decisions/orders dated 15-4-2002; 6- 5-2004; 31-7-2004, or the impugned Memo dated 21-5-2005 (impugned in the writ petitions), could be  considered  as  having  efficacy  or  operative force as determinative or deprivatory of title in or entitlement to possession of immovable property of  an  extent  of  Ac.1635-34  guntas  in  Kokapet village of Ranga Reddy District,  in favour of the State  itself  or  any  other  private  individual  or individuals, including the writ petitioner and/or the non-official  respondents  in  this  batch  of  writ appeals;

(c)   The decision/order in Memos dated 06-5-2004 and 31-7-2004 were not formally communicated to any of the writ petitioners including Sri K.S.B.Ali, the  representationist  at  whose  instance  and  on whose representation these Memos were issued;

(d)  In the light of conclusion (c) above, the Memos dated  6-5-2004  and  31-7-2004,  being uncommunicated  administrative  orders,  are inoperative, inexecutable and sterile;

(e)  The  instruments/decisions/orders  dated  15-4-

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2002;  6-5-2004;  31-7-2004  or  the  impugned Memo  dated  21-5-2005  not  having  been expressed  or  authenticated  in  the  manner ordained by Article 166 (1); or established to have been  decisions  taken  at  the  specified  level  of authority,  in  accordance  with  the  Rules  of Business  issued  by  the  Governor  of  the  State under Article 166 (2) and (3), cannot be regarded as orders issued by the State in exercise of  its executive  power  under  Article  162  of  the Constitution;

(f)   Consequent on conclusions (a) to (e) above, the impugned  Memo  dated  21-5-2005  is  not susceptible  to  invalidation  by  this  Court  in exercise  of  its  power  of  judicial  review  under Article  226  of  the  Constitution.  Since  the impugned  Memo rescinds  uncommunicated  and inoperative  Memos  dated  6-5-2004  and  31-7- 2004,  violation  of  the  audi  alterem  partem principle  (even  if  applicable  in  the  facts  and circumstances  of  the  case),  is  of  no  legal consequence and would not result in resuscitation of the unauthorized and sterile memos dated 6-5- 2004 and 31-7-2004;

(g)   Having  withdrawn W.P.No.14434  of  2006  and obtained invalidation of the judgment in the said writ  petition and in W.A.No.887 of  2006, in SLP (Civil)  No.  23392  of  2007,  by  the  order  of  the Hon’ble  Supreme  Court  dated  31-7-2007,  while obtaining  permission  “to  take  appropriate remedy”,  Sri  K.S.B.Ali  is  disentitled either  to file another  writ  petition  for  the  same  relief  as  in W.P.No. 14434 of 2006 or to pursue the pending writ petition No. 10084 of 2006, as this would not be an appropriate remedy; and pursuit  of  public law remedy by Sri K.S.B.Ali, for substantially the same  grievance  as  in  the  earlier  abandoned proceedings constitutes  an  abuse of  process  of the Court; and

(h)   Neither has Sri K.S.B.Ali established by specific pleadings nor by due authorization on record that he  is  authorized  to  represent  the  cause  of  203 legal  heirs  of  Nusrat  Jung-I;  nor  have the other petitioners  pleaded  or  established  the  basis  for

Civil Appeal Nos. 15571-15572 of 2017 Page 22 of 36 (arising out of SLP(C) Nos. 18755-18756 of 2013 – BATCH MATTERS)

their claims, to be the heirs of Nusrat Jung-I.

(i)   In view of the foregoing analyses, for the afore- stated reasons and in the light of our conclusions supra, the common judgment dated 02.06.2009 in W.P.Nos.10084  of  2006;  22619  of  2007;  3421, 7747, 8761 and 12928 of 2008; 3750 and 6425 of 2009 is set aside and the several writ appeals are allowed,  with  costs;  and  for  reasons  alike W.P.No.29063  of  2009  is  dismissed  and  with costs.”

15) On  behalf  of  the  appellants,  arguments  were  mainly

advanced  by  Mr.  Ali,  who  appeared  in-person  and  Mr.  V.N.

Raghupathy,  Advocate  who  argued  on  behalf  of  some  other

appellants.  The entire  thrust  of  Mr.  Ali’s  argument  was on the

order passed by the Atiyat Court and his submission was that as

per these orders, the appellants were held to be owners of the

subject lands, as legal heirs of Nusrat Jung-I.  Atiyat Court was

having requisite jurisdiction to decide this lis and its decision had

not only attained finality, it was accepted by the Finance Minister

as  well.   Therefore,  the  same  was  binding  on  the  State

Government.              Mr. Ali, in addition, submitted that special

express powers invested in this Court to go into these issues by

virtue of Article 323B of the Constitution.  He, thus, contended

that this Court should enforce the order of the Atiyat Court which

was a decree under the Atiyat Act, 1952, which was a special Act

and  displaced  the  jurisdiction  of  the  Civil  Court.   Number  of

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judgments was cited in support of the aforesaid proposition.

 16) Mr. Raghupati, on the other hand, argued that the inquiry

into succession started on 7th August, 1905.  This property is a

Royal gift prior to Ashifsahi dynasty and the sale deed of 1852

contains a recitle that this property is exclusion (Kharij – jama) for

ever  for  themselves  from  every  respect  of  control  of  Civil

Government of Nizam ul-mulk Asif Jah on the 14 day of Jamadi-

Al-Awal  1240 H and there is  certificate  for  exclusion  from the

Government (Diwani) i.e. Revenue Department (Sanad-E-Mafee,

i.e.  Royal  Waver (no PAC/CESS).   After  the demise of  Nusrat

Jung Bahadur-I, the enquiry has started on 17th August, 1905 with

regard to succession only.  Circular 10 of 1338 Fasli came into

force during the pendency of enquiry.  It  was also argued that

according  to  Section  15(b)  of  Atiyat  Enquiry  Act,  1952,  it  is

circular 10 of 1338 that applies to pending enquiry of Inam and

Succession enquiry.  Hence, the Atiyat Enquiry Act, 1952 has no

application.   Under  Section  9  of  circular  10,  the  Government

should have initiated action to avoid this Muntakhab.  Since it

failed to do so, the Muntakhab attained finality.  Muntakhab was

granted by Nazim Atiyat after obtaining approval from Revenue

Minister under Section 8(e) of circular 10 of 1338F.  Thus, the

Muntakhab  is  valid  document  and  its  validity  has  not  been Civil Appeal Nos. 15571-15572 of 2017 Page 24 of 36 (arising out of SLP(C) Nos. 18755-18756 of 2013 – BATCH MATTERS)

contested in the writ petition.  It was further submitted that prior to

Land  Revenue  Act,  1317,  certain  rules  were  in  force  which

continued to be in force under Section 1(2) of Land Revenue Act,

1317 Fasli.

17) Mr. Raghupati also submitted that temporary attachment of

the  subject  lands  under  Section  110  of  Land  Revenue  Act,

1317(f)  was of no consequence and it could not divest the onus

from their ownership.  He also laid stress on the approval granted

by the Revenue Minister on the basis of which Muntakhab was

granted.  He  argued  that  it  was  done  after  following  due

procedure.  Reference was made to the judgment of this Court in

State  of  Andhra  Pradesh  v. P.  Hanumantha  Rao  (Dead)

Through LRs. and others8  wherein it was held, thus:

“33. No doubt, it was held that neither in exercise of the power of writ under Article 226 nor in supervisory jurisdiction  under  Article  227,  the  High  Court  will convert  itself  into  a  court  of  appeal  and  indulge  in reappreciation or evaluation of evidence. The power of the High Court  in  writ  jurisdiction to  interfere where important evidence has been overlooked and the legal provisions  involved are  misinterpreted  or  misapplied has  been  recognised  even  in  the  case  of Sawarn Singh [(1976)  2  SCC  868  :  AIR  1976  SC  232]  on which  strong  reliance  was  placed  on  behalf  of  the State. The relevant observations are:  

“13. In regard to a finding of fact recorded by an inferior tribunal, a writ of certiorari can be issued only if in recording such a finding, the tribunal  has  acted  on  evidence  which  is

8  (2003)10SCC121 Civil Appeal Nos. 15571-15572 of 2017 Page 25 of 36 (arising out of SLP(C) Nos. 18755-18756 of 2013 – BATCH MATTERS)

legally inadmissible, or has refused to admit admissible evidence, or if  the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law.”

xxx xxx xxx

35. With the growing menace of land-grabbing, the Act of  1982  constitutes  Special  Courts  and  ousts jurisdiction of the regular civil courts in respect of land alleged  to  have  been  grabbed.  Where  the  regular remedy provided by general law is ousted by special law,  the  provisions  of  the  latter  deserve  to  be construed strictly. We have examined the scheme and object of the Act and examined its relevant provisions. When an occupant of the land is alleged to be a “land- grabber”, he has to justify his possession and prove his  source  of  title.  Where  source  of  title  by  an occupant is produced, the Special Court is required to examine  it  to  consider  whether  on  the  basis  of evidence of title produced by him, he can be held to be not falling in the definition of “land-grabber” under clause (d) of Section 2 of the Act. In the present case, the occupants had produced documents to prove their source  of  title  and  long  possession  of  their predecessor-in-title  being  the  original  grantee  under a muntakhab issued  by  the  Ruler  of  the  erstwhile Nizam  State.  This  title  deed  with  revenue  entries based  on  them  produced  by  the  occupants  should have been treated sufficient for the purposes of the Act to treat the occupants of the land to be falling outside the definition of “land-grabber”. It is not a case where the occupants have tried to justify their possession on the basis of a mere bona fide claim to the land. They have  produced  oral  and  documentary  evidence  on the muntakhab and  justified  their  possession  as alienees from the heirs of the original grantees.”

18) The learned counsel appealing for the State of Telangana

and  Hyderabad  Metropolitan  Development  Authority  (HMDA)

strongly  refuted  the  aforesaid  submissions  in  an  attempt  to

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persuade this Court to uphold the impugned judgment of the High

Court.   It  was  his  submission  that  the  High  Court  had  rightly

questioned the locus of Mr.  Ali  and even before this Court,  he

could not point out as to how he was competent to espouse the

present litigation and represent the so-called legal heirs of Nusrat

Jung-I.   It  was also argued that the appellants had no right to

even  make  their  submissions  on  merits  as  they  had  not

challenged the order of the Single Judge refusing to grant them

relief. The issue before the Division Bench, in the appeals filed by

the State and HMDA, only related to the directions given by the

Single  Judge  to  the  Government  to  take  a  view  after  giving

hearing to the appellants and the High Court  in the impugned

judgment  had  considered  the  aforesaid  aspect,  accepting  the

plea of the State and allowing its appeals.  Therefore, argued the

learned counsel,  that  issue decided in the impugned judgment

could be the only subject matter of these appeals.  

19) After  considering  the  respective  submissions,  we  find

ourselves  in  agreement  with  the  contentions  advanced  by  the

learned counsel for respondent.  There are various reasons to

dismiss these appeals, which are discussed herein below:

20) In the first place, it is to be noticed that as far as Mr. Ali is

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concerned, his writ petition no. 10084 of 2006 which was filed in

the High Court after passing of the order dated 31st July, 2007 in

SLP(C) No. 23392 of 2007 by this Court, was not maintainable.

This Court, by the said order, had permitted him to withdraw his

writ petition no. 14434 of 2006 and ‘to take appropriate remedy’.

Obviously, the remedy could not be in the form of another writ

petition  on  the  same  facts  and  grounds  which  were  pleaded

earlier.  The High Court has rightly held that having given up his

pursuit of public law remedy in earlier abandoned proceedings,

filing of the fresh writ petition or pursue pending writ petition no.

10084 of 2006 would constitute an abuse of the process of the

Court.

21) Secondly, the High Court is also right in holding that neither

Mr.  Ali  had  established  by  specific  pleadings  nor  by  due

authorisation on record that he was authorised to represent the

case of  203 legal  heirs  of  Nusrat  Jung-I.   It  is  clear  from the

above that insofar as Mr. Ali  is concerned, his appeals are not

even maintainable.

22) Thirdly, the High Court has specifically remarked, and rightly

so, that even the other appellants did not plead or establish the

basis of their claims that they are the heirs of Nusrat Jung-I.

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As pointed out  above,  the High Court  has discussed the

locus of these appellants (writ petitioners in the High Court) under

the  caption  ‘who  are  the  writ  petitioners?’  At  this  juncture,  it

would  be apt  to  reproduce the entire  discussion in  this  behalf

which compelled the High Court to observe that entirely chaotic

and  incoherent  state  of  facts  were  pleaded  by  all  these  writ

petitioners in their writ petition since we are in agreement with the

High  Court’s  analysis.  Relevant  portion  of  the  impugned

judgment, in this behalf, is as under:

“There  is  another  significant  but  piquant  and incomprehensible  circumstance in this  lis.  The initial order dated 15-04-2002, the subsequent orders dated 06-05-2004 and 31-07-2004 and the impugned memo, all  flow  out  of  representations  made  by  K.S.B.  Ali claiming to be the sole representative of the legal heirs of Nusrat Jung – I.

The letter dated 15-04-2002 refers to W.P.No.20298 of 1993  filed  by  Mirza  Agha  Mohammed  Ali  and  169 others  (seeking  implementation  of  the  Muntakhab). These  petitioners  claimed  to  be  the  successors-in- interest of Nusrat Jung – I. By the judgment dated 09- 07-2001, this Court declined to go into the details of the case and directed the Government to consider the report  of  the  CLR  and  take  further  action  in accordance with law. The letter dated 15-04-2002 also refers  to  a  representation  dated  04-08-2001  by Moizuddin  Mahamood  (also  the  petitioner  in W.P.No.22619 of 2007); and another from K.S.B. Ali, claiming to be the sole representative of the legal heirs of Nusrat Jung – I. Qua this letter (dated 15-04-2002) the  representation  of  K.S.B.  Ali  was  rejected.  The memo dated 06-05-2004 was issued on the basis of a representation  dated  06-01-2003  and  further representations, only by K.S.B. Ali claiming to be the sole  representative  of  the  legal  heirs,  seeking

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implementation of the Muntakhab and reconsideration of  the  order  dated  15-04-2002.  The  basis  for  the memo dated 31-07-2004 is the same as it is for the memo  dated  06-05-2004,  i.e.,  representations  by K.S.B.  Ali.  It  is  equally  not  clear  by  what  authority K.S.B. Ali claimed or continues to claim, to represent all  the legal heirs of Nusrat Jung – I;  and if he is a lawfully  authorized  representative,  whether  the  170 petitioners (in W.P.No.20298 of 1993) are persons who additionally claim to be the heirs or these petitioners are  renegade  legal  heirs  who  have  dis-associated from K.S.B.  Ali.  Neither  a  power  of  attorney nor  an authorisation signed by persons asserting to be legal heirs of Nusrat Jung – I nor the names and particulars of the legal heirs whose representative Sri K.S.B. Ali claims to be nor even the legal basis for the claim to be their representative, is on record.

We have earlier in the narrative herein noticed that the 1st defendant  in  O.S.No.512  of  1973  was  one  J.H. Krishna Murthy,  who in his written statement therein claimed to be the GPA of the heirs of late Nusrat Jung – I. In that capacity he had also though unsuccessfully preferred the appeal C.C.C.A.No.142 of 1976. When Sri K.S.B. Ali supplanted J.H. Krishna Murthy, as the authorized  legal  representative  of  the  heirs  and  by what authority, is neither pleaded nor clarified.

W.P.No.9551 of 2004 was also by K.S.B. Ali claiming to be the sole  representative of  the heirs  of  Nusrat Jung – I. The grievance in this writ petition was non- communication of the memo dated 06-05-2004 to the District Collector and MRO and for implementation of the  order  of  the  Atiyat  Court.  This  writ  petition  was disposed  of  at  the  admission  stage  directing communication  of  the  memo  dated  06-05-2004  to respondents 2 to 4 therein. Sri Ali did not plead in this writ  petition  that  the  Memo  dated  06-05-2004  was communicated to him.

W.P.No.14439 of 2006 was again by K.S.B. Ali alone claiming that he and a large number of (203) persons are the legal heirs of Nusrat Jung – I. The proposals for sale of 100 acres in Kokapet village by the HUDA was challenged in this writ petition and title to the said extent as part of the schedule property was claimed by the petitioner K.S.B. Ali, as the sole representative of

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the legal heirs of Nusrat Jung – I. On what basis Ali claimed to be the heir of Nusrat Jung – I and/or to be authorized to represent all the legal heirs is not clear. No  foundational  facts  are  pleaded  nor  any  material furnished to infer with certitude the claim of Sri Ali to represent  the  legal  heirs  of  Nusrat  Jung –  I  or  the claims of the other writ petitioners to being the legal heirs  (of  Nusrat  Jung  –  I)  and  hence  to  having  a litigable interest in the schedule property. Against the dismissal of this writ petition (with liberty granted) to pursue  declaratory  and  injunctory  reliefs  before  the Civil Court, K.S.B.Ali preferred writ appeal No.886 of 2006.  The  appeal  was  dismissed  by  the  judgment dated 26-10-2007. K.S.B. Ali appealed to the Supreme Court  by  Special  Leave,  pleaded  for  withdrawal  of W.P.No.14439 of 2006. By the Order of the Supreme Court,  dated  13-12-2007,  the  judgments  in W.A.No.887 of 2006 and W.P.No.14439 of 2006 were set aside and writ petition dismissed as withdrawn; the issues  were  left  open  and  the  appellant  Ali  was preserved the liberty “to take appropriate remedy”.

Coming to the several writ petitions and the common judgment  therein  (wherefrom  the  present  appeals arise),  as  already noticed,  W.P.No.10084 of  2006 is again  by  K.S.B.Ali,  claiming  to  represent  203  legal heirs of Nusrat Jung – I. W.P.No.22619 of 2007 is by the sole petitioner Moizuddin Mahamood, one of the representationists referred to in the order dated 15-04- 2002. It does not appear that the memos dated 06-05- 2004 and 31-07-2004 were issued on the basis of the representations  by  this  gentleman  –  Moizuddin Mahamood. W.P.No.3421 of 2008 is by Malik Sultana and  21  others;  W.P.No.7747  of  2008  is  by  Ghouse Mohiuddin  Siddiqui;  W.P.No.8761  of  2008  is  by  13 petitioners; W.P.No.12928 of 2008 is by 9 petitioners; W.P.No.3750  of  2009  is  by  117  petitioners;  and W.P.No.6425 of 2009 by 20 petitioners. If K.S.B.Ali is the sole representative of all the legal heirs of Nusrat Jung – I, it is not clear who the other writ petitioners are  or  on  what  basis  they  claim  to  be  so.  Except K.S.B.  Ali  and  Moizuddin  Mahamood  and  the  writ petition filed by Mirza Agha Mohammed Ali  and 169 others, there is no reference to any other claimants to the schedule property even in the letter dated 5-04- 2002,  whereby  the  representation  of  K.S.B.Ali  was rejected.  The  subsequent  memos  dated  06-05-2004

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and  31-07-2004  directing  implementation  of  the Muntakhab were issued only  on the basis  of  K.S.B. Ali’s representation and these orders rescinded by the impugned memo dated 21-05-2005.  Neither the 170 petitioners (whose W.P.No.20298 of 1993 was referred to  in  the  letter  dated  15-04-2002)  or  Moizuddin Mahamood  whose  representation  dated  04-08-2001 was also referred to in this letter (rejecting K.S.B.Ali’s representation  for  implementation  of  the  Muntakhab and  restoration  of  possession  of  the  schedule property), have ever challenged the decision dated 15- 04-2002. Neither did Sri K.S.B. Ali.

Since neither the memos dated 06-05-2004 and 31- 07-2004  nor  the  re-calling  of  the  orders  in  these memos by the impugned memo dated 21-05-2005 is at the instance of any other person except K.S.B. Ali, none of the other petitioners could legitimately assert a  grievance  that  the  impugned  memo  was  issued without  notice  or  opportunity  to  them  and  on  the ground  that  any  rights  accrued  to  them  under  the memos  dated  06-05-2004  and  31-07-2004  were extinguished by the impugned memo.

In the chaotic and incoherent state of facts adverted to above and absent any clarity as to whether K.S.B.Ali and/or the writ petitioners are the legal heirs of Nusrat Jung – I or lawfully authorized to represent any legal heirs; and since the writ petitions are founded on the assertion that the reliefs claimed are on the basis that the several petitioners (being successors-in-interest of Nusrat  Jung  –  I)  are  entitled  to  restoration  of possession  of  the  schedule  property;  we  do  not consider  it  prudent  or  pragmatic  that  reliefs  should have been granted to petitioners who have failed to plead and establish any litigative interest in the subject matter of the writ petitions; and therefore to a locus to litigate.

23)  Fifthly, as pointed out above, the judgment of the learned

Single Judge insofar as it was against the appellants, was never

challenged  by  them by  filing  any  writ  appeal(s).   It  would  be

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pertinent to reproduce hereunder the conclusions of the learned

Single Judge in its judgment dated 2nd June, 2009.

“The writ petitions were allowed with the following  directions:

(a) the impugned memo dated 21-05-2005, is set aside, as violative of principles of natural justice;

(b) the  Government,  in  its  Revenue  Department,  shall pass  fresh  orders,  after  issuing  notice  to  the petitioners. It shall be open to the petitioners to urge all the grounds before the Government.

(c)G.O.Ms.No.  1084,  dated  06-06-2005,  is  upheld, however, with a rider that as and when the rights of the  petitioners  vis--vis  the  lands  are  determined  in their favour, it shall be open to them, to pursue their remedies, in this regard;

(d)This  judgment  shall  not  be  treated  as  a pronouncement  or  adjudication  of  any  dispute,  or question, involved in the matter; and

(e)It  shall  be  open  to  the  legal  representatives  of  late Nawab  Nursat  Jung  Bahadur-1,  or  their  authorized agent,  to  pursue  the  proceedings  before  the Government,  and  the  dispute,  if  any,  among  them, may be agitated before a competent forum.

As is clear from the observations set out in direction (d) above, there was no adjudication or determination of any of the substantive disputes between the parties, particularly with regard to the vitality of the Muntakhab. These  disputes  are  relegated  for  de  novo consideration by the Government, and after notice to the petitioners.”

The learned Single Judge had specifically clarified that his

judgment  was  not  to  be  treated  as  a  pronouncement  for

adjudication of  any dispute or  questions involved in the matter

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and disputes, if any, among them could be adjudicated before a

competent forum.  In view of the above, in the appeals filed by the

State  against  the  judgment  of  the  Single  Judge,  the  Division

Bench was only called upon to decide as to whether the direction

to relegate the matter to the State Government was proper or not.

The  High  Court  has  decided  that  aspect  in  the  impugned

judgment. It is obvious that the appellants cannot rake up those

issues  in  these  appeals  which  are  not  decided  either  by  the

learned Single Judge or the Division Bench.

24) Sixthly, Insofar as the decision of the Division Bench on the

issue  raised  before  it  is  concerned,  no  arguments  were  even

advanced by the appellants questioning the validity thereof.  Even

otherwise, having gone through the said judgment minutely, we

are  in  complete  agreement  with  the  impugned  judgement  on

those aspects, decided by the High Court.  To recapitulate in brief

it is stated that even the writ petition filed by the petitioners herein

(writ  petition  no.  3421  of  2008)  which  inter  alia  sought  to

challenge memo dated 21st May,  2005 issued by the Revenue

Department as illegal and also sought to implement Muntakhab

No. 55 of 1955 dated 7th May, 1955, by mutating the names of the

petitioners in the Revenue Records and return the custody of the

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property was clearly not maintainable for two reasons.  Insofar

the  memo  dated  21st May,  2005,  was  concerned,  the  main

grievance of the writ petitioners appears to be that the same had

been passed without giving any notice to the writ petitioner and

that  the  same  could  not  have  reviewed/rescinded  the  memos

dated 6th May,  2004.   The said arguments  are  not  tenable on

account  of  the  fact  that  the  impugned  memo dated  21st May,

2005, only sought to reinforce the memo dated 15 th April, 2002,

issued  by  the  Government  in  response  to  the  representation

made by Mr. Ali.  Therefore, when the impugned memo dated 21st

May, 2005 was admittedly not issued at the instance of the writ

petitioners  there could  not  have been any question of  hearing

them prior to the same.  Further, neither the impugned memo nor

the  memo dated  6th May,  2004  (purporting  to  create  rights  in

favour  of  the  legal  heirs  of  Nawab  Nusrat  Jung-I)  was

communicated  to  the  writ  petitioners.   Hence,  insofar  as  the

memo dated 21st May,  2005 is  concerned,  no cause of  action

accrued in favour of the writ petitioners to have approached the

High Court and, therefore, the only person, if any, who could have

challenged the same was Mr. Ali.  As far as Mr. Ali, is concerned,

as already pointed above, he could not maintain the writ petition

as it was not ‘appropriate remedy’ as granted by this Court.   

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25) For  all  these  reasons,  these  appeals  are  dismissed.

However, in the facts and circumstances of this case, we may

refrain from awarding any costs.

.............................................J. (A.K. SIKRI)

.............................................J. (ASHOK BHUSHAN)

NEW DELHI; OCTOBER 4, 2017

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