REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4099 OF 2000

Shankara Co-op Housing Society Ltd. ………….. Appellant

versus

M. Prabhakar & Ors. …………..Respondents

WITH

CIVIL APPEAL NO. 4100 OF 2000, 4101 of 2000  

AND  

CIVIL APPEAL NO. .......... OF 2011 (Arising out of SPECIAL LEAVE PETITION (C) NO. 6964 of 2001)

J U D G M E N T

H.L. Dattu, J.

1) We grant  leave  in  the  special  leave  petition  filed  by  the  State  of  

Andhra Pradesh.

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2) In  these  civil  appeals,  we  are  required  to  consider  essentially  the  

erstwhile legislations with regard to the administration of property left  

behind in India by evacuees migrated to Pakistan during partition and  

the compensatory redistribution of the same amongst those persons  

who had migrated from Pakistan, leaving behind their property, at the  

time of partition.  

3) The subject matter are the lands in Survey Nos. 9, 11, 47, 140, 141,  

142, 143, 151, 152, 153, 676 and 677, admeasuring about 90.08 acres,  

situated  at  Khapra  Village,  in  the  erstwhile  Medchal  Taluk  (now  

Vallabhnagar  Taluk)  of  the  Ranga Reddy District,  Andhra  Pradesh  

[hereinafter referred to as ‘the disputed lands’].

4) In this  batch of three civil  appeals,  the appellant  is the subsequent  

purchaser  of  the  property  in  dispute  from  the  allottees  under  the  

provisions  of  The  Displaced  Persons  (Compensation  and  

Rehabilitation) Act, 1954 (hereinafter referred to as, “the Displaced  

Persons  Act”).   It  assails  the  judgment  and  order  of  the  Division  

Bench of the High Court of Andhra Pradesh in WP No. 17722 of 1990  

dated 27.04.2000. The State Government has also filed  Special Leave  

Petition (c) No. 6964 of 2001 under Article 136 of the Constitution, in  

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defense of the notification which was struck down by the impugned  

judgment. Since the facts and questions of law raised before us are the  

same in all these civil appeals, we will take up C.A. No. 4099 of 2000,  

in the case of Shankara Co-op. Housing Society Ltd. as the lead case  

for  the  purpose  of  narrating  the  facts  leading  upto  the  impugned  

judgement.

5) The facts in extenso require to be noticed.  They are:-                The  

disputed  lands  originally  belonged  to  one  Mandal  Bucham,  whose  

legal  representatives  are  respondents  herein.   Shri  Mandal  Bucham  

had borrowed paper currency from late Rahim Baksh Khan and since  

he failed to discharge the amount due, late Rahim Baksh Khan had  

filed  a  civil  suit  against  Mandal  Bucham  before  the  District  and  

Sessions Judge at Hyderabad District.  It appears that the Court had  

passed a judgment and decree in favour of late Rahim Baksh Khan.  In  

the execution proceedings of the decree, it is alleged that late Rahim  

Baksh Khan had purchased the disputed lands belonging to Mandal  

Bucham in an auction under the  supervision of  the  Court.   Rahim  

Baksh Khan expired in the year 1940 and later on, it appears, his legal  

representatives had migrated to Pakistan after partition of India.     

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6) It  is  averred  that  the  Deputy  Custodian  and  Collector,  Hyderabad  

District, had issued notice dated 11.01.1951, to the legal heirs of late  

Rahim Baksh Khan, namely Mr. Rafi Mohammed Khan and Mr. Shafi  

Mohammed  Khan,  under  sub-Section  (1)  of  Section  7  of  the  

Administration of Evacuee Property Act, 1950 [hereinafter referred to  

as “the Evacuee Property Act”]  inter alia stating that the “disputed  

lands” belonged to late Rahim Baksh Khan and they have migrated to  

Pakistan  and  they  are  evacuee  and,  therefore,  he  would  hold  an  

enquiry in the matter on 27.01.1951 and any person having any share  

or interest in the above “disputed lands” are directed to participate in  

the proceedings with necessary documents in support of their claim.  

It appears that general notices were also published in the village in  

which the said lands were situated on 26.01.1951. Notice was also  

given to the ancestors of the contesting respondents on 15.02.1951. It  

is stated that neither the contesting respondents nor anybody else had  

filed  any  objection  to  the  notice  issued  under  Section  7(1)  of  the  

Evacuee Property Act.

7) After  conducting  a  detailed  enquiry  in  respect  to  the  claim  of  

ownership of the said property, the Deputy Custodian and Collector  

issued  a  Notification  No.55,  in  NO  CE/4064  to  4080  dated  

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11.12.1952, declaring the disputed property in issue as an Evacuee  

Property  under  Section  7  of  the   Evacuee  Property  Act.   This  

notification  was  subsequently  published  in  the  Hyderabad  

Government Gazette.  Pursuant to the aforesaid declaration, the name  

of the Collector/Custodian was entered in the Revenue Records.  After  

such declaration, the Central Government has acquired the “disputed  

lands”  by  issuing  notification  under  Section  12  of  the  Displaced  

Persons Act for the rehabilitation of the persons who were displaced  

during the partition.  

8) The erstwhile owners of the property or the ancestors of the contesting  

respondents did not question the declaration of the “disputed lands” as  

evacuee  property  and  the  subsequent  acquisition  by  the  Central  

Government.  It was on or about in the year 1955, the ancestors of the  

respondents  herein  claimed  ownership  of  the  ‘disputed  lands’  and  

made  their  representation  before  the  authorities  under  the  Evacuee  

Property Act.  The authorities, however, had informed them that they  

should prefer an appeal or a review petition.  In spite of such counsel,  

they continued to make representations and petitions in furtherance of  

their claim.  

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9) The Tahsildar, Medchal Taluk, issued a letter dated 29.06.1966, inter-

alia,  seeking to auction the “disputed lands” on yearly lease basis.  

Aggrieved  by  the  action  of  the  authorities,  Shri.  Mandal  Anjaiah,  

claiming to be ancestor of the contesting respondents, preferred a writ  

petition before the Andhra Pradesh High Court, in No. 1051 of 1966,  

inter-alia,  seeking a  writ  of  prohibition or  direction restraining the  

respondents in the petition from auctioning the “disputed lands” and  

to direct the authorities to decide the representations/ petitions filed by  

the writ petitioner.  The Regional Settlement Commissioner/Custodian  

of  Evacuee  property  was  arrayed  as  one  of  the  respondents  to  the  

proceedings.  In his affidavit dated 21.08.1967, he had averred that the  

notice as required under Section 7 of the Evacuee Property Act read  

with Rule 6 of the Rules notices had been issued to all  the parties  

interested in the disputed lands.   

10) During the pendency of the writ petition, a portion of the land was  

allotted to one Smt. Eshwari Bai, and therefore, she was impleaded as  

one of the respondents in the writ petition.  During the pendency of  

this writ petition, other contesting respondents had filed a Revision  

Petition  under  Section  27  of  the  Evacuee  Property  Act  before  the  

Deputy Custodian General, Jaisalmer House, New Delhi, to revise the  

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notification dated 11.12.1952 declaring the disputed lands as evacuee  

property.  

11) The writ  petition came to be dismissed by the High Court vide its  

order  dated  14.06.1968  on  the  ground  that  the  claim  of  the  

respondents is  highly belated and they have also not exhausted the  

alternate  remedy  provided  under  the  provisions  of  the  Evacuee  

Property Act.  The order passed by the Court has some relevance and,  

therefore, the same is extracted.  It reads :-    

“In this application for the issue of a writ under Article   226 of the Constitution, what is sought to be challenged  by the petitioner is an order of the Deputy Custodian of   Evacuee Property under Section 7 of the Administration  of Evacuee Property Act declaring certain properties as  evacuee  properties.   The  notification  was  made  on  11.12.1952.  The petitioner did not avail himself of the   remedy provided under Section 24 of the Act by way of   an appeal.  In fact, in 1955 and again in 1957 and 1959,   he  appears  to  have approached the Deputy  Custodian   with  a  request  that  the  land should  not  be  treated  as  evacuee  property  and  on  all  these  occasions,  he  was   informed that he should go in appeal and not file review   applications.   It  is  not  open  to  the  petitioner  without   preferring an appeal,  to  approach this  court  at  a  late  stage with a petition for the issue of a writ.  There are no   merits in this writ petition and it is therefore dismissed  with costs.”       

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12) After the dismissal of the writ petition, some portion of the lands was  

allotted to Shri.  Gopaldas and Shri.  Jangimal on 15.09.1968 and to  

Shri. Mathuradas (legal heir of Shri. Valiram Hiramal) on 21.11.1968.  

Sanads (Transfer of Titles and Rights) were also issued to them and  

their names were recorded in the revenue records.  

13) As we have already noticed, some of the legal representatives of late  

Mandal Bucham had approached the Deputy Custodian General, New  

Delhi by filing a revision petition under Section 27 of the Evacuee  

Property Act, inter alia questioning the notification dated 11.12.1952.  

The Deputy Custodian General vide his order dated 25.09.1970, had  

allowed the  revision  petition  and remanded the case  to  Custodian-

cum-Collector, Hyderabad District for re-determination of the evacuee  

nature of the lands after affording an opportunity of hearing to all the  

parties.   

14) After  such  remand,  Collector-cum-Deputy  Custodian  of  Evacuee  

Property had conducted a re-enquiry and he had concluded that there  

was no evidence to show that late Rahim Baksh Khan came to be the  

owner of the land in pursuance of an auction by the Court in execution  

of  any  money  decree.  Hence,  the  Collector-cum-Deputy  Custodian  

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vide order dated 28.05.1979 came to the conclusion that since there  

were no records available to the contrary, Shri. Mandal Bucham and  

the  other  contesting  respondents  continue  to  be  the  owners  of  the  

disputed lands.    

15) Aggrieved by the aforesaid order, the allottees had filed a Revision  

Petition  before  the  Chief  Settlement  Commissioner  of  Evacuee  

Property,  Hyderabad under  the  Displaced Persons Act,  who,  by an  

order dated 27.10.1979, had called for the records of the case in order  

to  review  the  aforementioned  order  of  the  Collector-cum-  Deputy  

Custodian dated 28.05.1979.  It appears that in view of the pendency  

of  the proceedings,  the  Tahsildar  refused to give possession of  the  

“disputed lands” to the allottees (who had sanads in their name) in the  

light of the aforesaid order of the Collector-cum- Deputy Custodian,  

Hyderabad District.  

16) The  Chief  Settlement  Commissioner  of  Evacuee  Property,  by  his  

order dated 11.05.1983, set aside the aforesaid order of the Collector-

cum- Deputy Custodian, and declared that the said property belonged  

to late Rahim Baksh Khan and that by virtue of the Notification No.  

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55 in NO CE/4064 to 4080 of 1952, the disputed lands are evacuee  

property.

17) Once again, the contesting respondents had filed a revision petition  

under Section 33 of the Displaced Persons Act before the Secretary,  

Revenue Department, Govt. of Andhra Pradesh to revise/review the  

aforesaid  order,  which  came  to  be  rejected  vide  order  dated  

23.07.1983.   

18) The contesting  respondents  filed  a  writ  petition  No.  7517 of  1983  

before the High Court of Andhra Pradesh, inter alia, requesting the  

court  to  direct  the  authorities  under  the  Displaced  Persons  Act  to  

initiate suo-moto proceedings to determine the claim of ownership of  

the disputed lands.  The High Court, by its order dated 26.07.1988,  

dismissed the writ petition, inter alia holding that it cannot compel any  

authority to initiate and dispose of the  suo moto proceedings under  

Section 33 of the Displaced Persons Act.    

19) The contesting respondents filed another Writ Petition No.17722 of  

1990 on 13.11.1990 (from which the impugned judgment has arisen)  

before the High Court, inter alia requesting the High Court to issue a  

writ or order directing the Commissioner, Survey Settlement and Land  

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Records/Chief  Settlement  Commissioner,  Evacuee  Property,  

Hyderabad to conduct an enquiry into questions of title of “disputed  

lands”  and  correctness  of  the  declaration  of  the  said  property  as  

evacuee  property in pursuance of proceedings of the Chief Settlement  

Commissioner  dated  27.10.1979.  It  is  relevant  to  notice  that  the  

contesting  respondents  did  neither  seek  for  the  quashing  of  the  

Notification No. 55 in NO CE /4064 to 4080 dated 11.12.1952, nor  

made  the  present  appellant  a  party  to  the  writ  proceedings.  

Subsequently,  on  13.03.1997,  the  prayer  in  the  writ  petition  was  

sought to be amended to include a prayer to quash the Notification  

No. 55 in NO CE 4064 to 4080 dated 11.12.1952, which was allowed  

on 27.08.1998. As the present appellant was not made party to the  

proceeding,  it  sought  to  implead  itself  by  filing  an  application  on  

22.01.1999, and the same was allowed on 27.08.1999.

20) By the impugned judgment dated 27.04.2000,  the  learned Division  

Bench of the High Court allowed the writ petition by setting aside the  

order passed by the Chief Settlement Commissioner dated 11.05.1983  

and restored the order passed by the Collector-cum-Deputy Custodian  

of Evacuee Property dated 28.07.1979.  Aggrieved by the Judgment  

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and  order  passed,  the  appellant-Shankar  Co-operative  Housing  

Society has come before us in these civil appeals.  

21) The subject matter of the Civil Appeal No. 4100 of 2000 pertains to  

the lands in Survey No. 152 admeasuring about 13.17 acres.  These  

lands  were  originally  allotted  to  Mathura  Das  on  26.11.1968,  

Subsequently, Mathura Das has executed General Power of Attorney  

(GPA), in favour of P.H. Hasanand and Chandumal dated 19.12.1966.  

Before  us,  the  appellant  –P.H.  Hasanand  as  General  Power  of  

Attorney Holder of the late Mathura Das (who died on 30.5.1970) is  

assailing the Judgment and order of the Division Bench of the High  

Court  in  W.P.  17722  of  1990  dated  27.4.2000.   It  is  relevant  to  

mention that the Special Leave Petition filed by Mathura Das through  

his legal representatives has been dismissed by an order made by this  

Court dated 13.8.2007 on the ground of delay.

22) The subject matter in Civil Appeal No. 4101 of 2000 pertains to lands  

in  Survey  nos.  9,11,140,142,143,676  and  677,  admeasuring  about  

20.27 acres.  These lands were originally allotted to Smt. Eswari Bai  

on  30.11.1966.   During  her  life  time,  she  had executed  a  General  

Power  of  Attorney  in  favour  of  Thakur  Hadanani  on  06.08.1999.  

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During the pendency of the appeal,  Smt. Eswari  Bai expired.  The  

application filed by Thakur Hadanani to bring legal representatives of  

Smt.  Eswari  bai  was  dismissed  by  this  Court  vide  its  order  dated  

30.03.2010 as General Power of Attorney holder of deceased has no  

locus- standi to file the appeal.  In this appeal, the appellants before us  

are (1) P. Laxmi Patni, who is the son-in-law of P.M. Rao; (2) Vidya  

Devi, legal representative of Seetha Devi wife of Gopal Das and (3)  

Thakur Das is minor and represented by Smt. Vidya Devi.

23) One of the appellants  before us is a co-operative society,  styled as  

Shankara Co-op. Housing Society Ltd. [hereinafter referred to as ‘the  

society’].  The said society  has  600 members  who are  Government  

employees.  The society has purchased the lands in disputes from the  

General Power of Attorney holders of three of the original allottees,  

namely,  Shri.  Gopaldas,  Shri.  Jangimal  and  Shri.  Mathuradas,  by  

paying the entire sale consideration.  It is asserted that the Society,  

after obtaining permission from the competent authorities, has allotted  

residential plots carved out of the “disputed lands” to its members.  

24) We have heard Shri. P.S. Narasimha, learned senior counsel and Shri.  

C.  Mukund,  learned  counsel  for  the  appellants  and   Shri.  Ranjit  

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Kumar and Shri.  L. Nageshwar Rao, learned senior counsel for the  

respondents. The State of Andhra Pradesh is represented by Shri. T.V.  

Ratnam, learned counsel.

25) Shri. C. Mukund, learned counsel who appears for the appellants in  

C.A. No. 4100 of 2000 and C.A. No. 4101 of 2000, submits  apart  

from others, that the delay and laches on the part of the contesting  

respondents in approaching various authorities for redressal of their  

grievances, would disentitle them to claim any reliefs.  It is submitted  

that repeated representations filed before the authorities would not be  

a ground to condone the delay and it is further submitted that there is  

inordinate delay in filing the writ petition from the date of notification  

issued under the Evacuee Property Act; the claim of the respondents is  

barred  by  principles  of  constructive  Resjudicata  since  in  the  writ  

petition filed by the respondents before Andhra Pradesh High Court,  

the  plea  of  non-service  of  notice  on  the  interested  persons  while  

declaring the said lands as an evacuee property was not raised, though  

it was available to them;  that the question of facts as to title of the  

said lands, etc., could not have been gone into by the High Court in its  

writ jurisdiction, under Article 226 of the Constitution; and  that since  

the “disputed lands” have already been acquired under the Displaced  

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Persons Act, the contesting respondents cannot have any right,  title  

and interest over those lands.

26) While elaborating the issues raised, Shri.  Mukund, learned counsel,  

submits that right from the beginning, the contesting respondents have  

either approached the authorities under the Evacuee Property Act or  

approached  the  judicial  forums  belatedly,  or  have  gone  before  the  

wrong  forum  seeking  either   incorrect  or  incomplete  reliefs.   He  

submits that the competent authority under the Evacuee Property Act  

had  not  only  issued the  individual  notices  to  the  evacuee  but  also  

public notice was also issued on 26.01.1951. He further states that the  

ancestors  of  the  contesting  respondents  were  served  with  a  notice  

dated 15.02.1951.  He also submits that there can be no dispute that  

the “disputed lands” belonged to late Rahim Baksh Khan, as his name  

was recorded in the land revenue records.   He further submits  that  

there  was  no  challenge  to  the  declaration  of  the  lands  as  evacuee  

property upto the year 1955, and for the next 11 years, upto 1966, the  

contesting  respondents  made  only  repeated  representations  to  the  

authorities,  without approaching the proper judicial  forum provided  

under the Evacuee Property Act.  He further asserts, that even in 1966,  

when the first writ petition was filed, the only prayer that was made  

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was to set  aside the action of the Tahsildar  seeking to auction the  

lands for granting Ek saala lease and not to quash the Notification No.  

55  dated  11.12.1952,  which  had  declared  the  disputed  lands  as  

evacuee property.  He points out that there was no averment in the  

writ petition filed in the year 1966 regarding non-service of the notice,  

which  is  one  of  the  principal  grounds  taken  by  the  contesting  

respondents  in  the  subsequent  writ  petition.  Shri.  Mukund  further  

asserts that at no point of time prior to the 1997 amendment to the  

impugned writ petition, a challenge was made to the Notification No.  

55 dated 11.12.1952, declaring the lands as evacuee property. He then  

referred to the counter affidavit filed by the State Government before  

the  High  Court  in  the  1966  writ  petition  which  states  that  the  

contesting respondents were in possession of the land on the basis of  

Ek Saala or annual lease for the purpose of cultivation, and they had  

not  paid  the  lease  amount,  and  when  their  eviction  was  being  

attempted,  they  claimed  ownership.  Subsequently,  even  after  the  

dismissal  of  the  1966 writ  petition,  Shri.  Mukund submits  that  the  

contesting respondents again did not pursue the correct remedies after  

the  1983  order.  In  summation,  Shri.  Mukund  contends  that  the  

contesting respondents did not take any steps from the time the notice  

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was issued [period between 1951 to  1955],  after  which they made  

repeated representations to the authorities, which came to be rejected  

[period between 1955 to 1959] and then filed the writ petition in 1966  

[without doing anything for 7 years for the period between 1959 to  

1966].  After this,  he states even pursuant to the 1983 Order,  again  

they did not follow the correct course, till the filing of the writ petition  

in  the  year  1990.   Even  when  the  writ  petition  was  filed,  the  

notification  declaring  the  said  lands  as  evacuee  property  was  not  

challenged. In other words, Shri. Mukund asserts that every time the  

contesting respondents raised their voice in protest, they did it before  

a wrong forum or seeking the wrong or incomplete reliefs.

27) The  learned  counsel  further  submits  that  a  person  who  seeks  

intervention of the court under Article 226 of the Constitution should  

give satisfactory explanation of his failure to assert  his claim at an  

earlier date.  The excuse for his procrastination should find a place in  

the petition submitted by him and the facts relied upon by him should  

be set  out  clearly  in the body of  the  petition.   An excuse  that  the  

contesting respondents were making repeated representations before  

various  forums  cannot  merit  serious  consideration.   In  aid  of  his  

submission,  the  learned  counsel  has  invited  our  attention  to  the  

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observations made by this court in  City and Industrial Development   

Cooperation  Vs.  Dosu Andershir  Bhiwandiwala  and Anr. (2009)  1  

SCC 168 (Paras 26-30),  S. S. Balu and Another Vs. State of  Kerala   

and  others  (2009)  2  SCC  479(Para  17),   New  Delhi  Municipal   

Council Vs. Pan Singh and others (2007) 9 SCC 278 (paras 17-18)  

and  K.V. Rajalakshmiah Setty & Anr. Vs. State of Mysore and Anr.  

(1967) 2 SCR 70.   

28) In support of his second submission, Shri. Mukund invites our  

attention to the judgment  and order in Writ Petition No.1051 of 1966  

dated 14.06.1968 and submits that the same had been decided not only  

on  merits  but  also  on the  ground that  the  writ  petitioners  had not  

availed the alternate remedy available under the Act.  Alternatively,  

the learned counsel  contends that non-service of notice as required  

under Section 7 of the Evacuee Property Act and the Rules framed  

thereunder  was  not  raised,  though  the  same  was  available  to  the  

contesting  respondents  and  therefore,  they  could  not  have  been  

permitted  to  take  that  plea  in  the  subsequent  writ  petition  filed.  

Therefore,  subsequent  writ  petition  from which,  the  present  appeal  

arises, is barred by the principles analogous to res judicata.  In aid of  

his submission, our attention is drawn to the decisions of this court in  

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Thakore Sobhey Singh Vs. Thakur Jai Singh and others (1968) 2 SCR  

848,  Mohan lal Goenka Vs. Beney Krishan Mukher Jee and others  

(1953) SCR 377 and Shashivraj Gopalji Vs. Ed. Appakath Ayissa and  

others 1949 PC 302.    

29) Leaned counsel Shri. Mukund further urged that it is settled law  

that  the  fact  finding  task  undertaken  by  the  High  Court,  which  is  

evident  from  the  impugned  judgment,  is  not  warranted  in  a  writ  

petition  filed  under  Article  226  of  the  Constitution  of  India.  He  

attempts to make good his argument by reading out passages from the  

impugned  judgment,  and  attempts  to  impress  upon  us  that  the  

prolixity of the judgment clearly showed that the questions of fact had  

been  gone  into  by  the  High  Court  while  granting  reliefs  to  the  

respondents.  This, according to the learned counsel, is impermissible.  

In aid of his submission, the learned counsel has invited our attention  

to the observations made by this Court in the case of Surya Dev Rai   

Vs. Ramchander Rai and others (2003) 6 SCC 675, Ranjeet Singh Vs.   

Ravi  Prakash (2004)  3  SCC  682  and  Karnataka  State  Industrial   

Investment and Development Corporation Ltd. Vs. Cavalet India Ltd.  

and others (2005) 4 SCC 456.     

19

30) Shri.  Mukund  submits  that  once  the  ‘disputed  lands’  are  

acquired under the Displaced Persons Act and allotted to the displaced  

persons,  the  Deputy  Custodian  of  Evacuee  Property  will  have  no  

jurisdiction  to initiate  any proceedings under the  Evacuee  Property  

Act.    He submits that the object of the two legislations are such that  

the Evacuee Property Act enabled that Government to first identify  

property as evacuee property and notify  the same,  after  which, the  

Government would acquire such property under the Displaced Persons  

Act and distribute the same to the displaced persons. He contended,  

once  such  acquisition  and  redistribution  take  place  under  the  

Displaced Persons Act, the Deputy Custodian loses all his jurisdiction  

under the Evacuee Property Act to deal with the evacuee property. In  

other words, he contends that once property was distributed under the  

Displaced Persons Act to the displaced persons, it loses its evacuee  

status, and the status of such land had attained finality, and the same  

cannot be challenged.  Reference is made to the observation of this  

court  in the case of  Major Gopal Singh and Others Vs. Custodian  

Evacuee Property (1962) 1 SCR 328, Basant Ram Vs. Union of India  

(1962) Supp. 2 SCR 733 and Defedar Niranjan Singh and another Vs.   

Custodian Evacuee Property and another (1962) 1 SCR 214.    

20

31) Shri Mukund assails the judgment and order of the High Court  

as  perverse on the ground: (a) that the High Court has not taken into  

consideration the fact that the contesting respondents had taken the  

lands  on  an  Ek  Saala  lease,  for  which  they  defaulted  in  making  

payment;  (b)  that  the  High  Court  had  completely  overlooked  the  

Order  passed  by  the  Chief  Settlement  Commissioner  dated  

11.05.1983; (c) that the plea of notice, not being served, was not taken  

in the writ petition filed in the year 1966.  Therefore, it was not open  

for  the  contesting  respondents  to  raise  such  contention  in  the  

subsequent proceedings.   

32) With regard to the question of non-service of notice, Shri.  Mukund  

would contend that if the contesting respondents were in possession of  

the said lands, as claimed by them, they cannot plead that they were  

not served with the notice issued under sub-section (1) of Section 7 of  

the Evacuee Property Act.  He further submits that the conduct of the  

contesting respondents cannot be brushed aside and had a very vital  

bearing  on this  case.   He also  points  out  that  the  revenue  records  

produced by the State Government before the High Court would show  

late Rahim Baksh Khan as the owner of the property, a fact that was  

overlooked by the High Court in the impugned judgment.  

21

33) Shri.  P.S.  Narasimha,  learned  senior  counsel  appearing  for  the  

Society, prefaces his submission with the purpose and object behind  

the enactment of the Evacuee Property Act and the Displaced Persons  

Act. He contends that property that was acquired under the Evacuee  

Property  Act  as  evacuee  property  was  redistributed  to  displaced  

persons for a consideration, and that the sanads issued were actually  

sale deeds. He further states that there were no prohibition/restriction  

in the sanads for alienation of the property under the provisions of the  

Displaced  Persons  Act  and,  therefore,  gave  finality  to  question  of  

ownership  of  the  lands.   While  adopting  the  submissions  of  Shri.  

Mukund,  the  learned  senior  counsel  would  contend  that  once  the  

Displaced  Persons  Act  comes  into  operation,  the  operation  of  the  

Evacuee Property Act comes to an end.  He further emphasized that  

the contesting respondents could not be permitted to take advantage of  

their own wrongs, especially when third party rights had already been  

created.  He also urged that the subsequent writ petition filed by the  

contesting respondents should have been dismissed by the High Court  

for  the  same  reason  for  which  earlier  writ  petition  was  dismissed  

inasmuch as the cause of action in both the petitions being the same,  

22

the  subsequent  writ  petition  would  be  barred  by  the  principles  

analogous to res judicata.      

34) Shri. T.V. Ratnam, learned counsel appearing for the State of Andhra  

Pradesh, submits that the Evacuee Property Act is a complete code by  

itself, with a mechanism to deal with the question of evacuee nature of  

the property.  He states that once it is decided by the Custodian, in  

exercise of his powers under the Act, that the property was an evacuee  

property, then it was not available for challenge in a writ petition filed  

under  Article  226  of  the  Constitution.   Such  declaration  can  be  

questioned only by filing either  an appeal  or  revision,  as  provided  

under the Act. He further states that the contesting respondents did not  

follow  the  procedure  prescribed  under  the  Act.   Even  when  the  

Revision filed by them was rejected by the Custodian, the same was  

never  challenged.  The  learned  counsel  pointed  out  in  the  pahani  

pathra or  revenue  records  that  persons  other  than  the  contesting  

respondents  were  also  in  possession  of  the  land,  along  with  Shri.  

Mandal Anjaiah, and states that this possession was in pursuance of  

the  Ek  Saala  lease  that  was  granted  in  their  favour.   The  learned  

counsel points out that the revenue records would clearly prove that it  

is the Custodian who was the owner and in possession of the lands in  

23

dispute.   He  also  emphasized  that  there  was  inordinate  delay  in  

challenging  the  notification  dated  11.12.1952  and  the  High  Court  

ought not to have entertained the writ petition filed in the year 1990  

and unsettle the settled things.   

35) Per contra, Shri. Ranjit Kumar, learned senior counsel, submitted that  

though late  Rahim Baksh Khan had a  money  decree  in  his  favour  

against  Shri.  Mandal  Bucham,  an  ancestor  of  the  contesting  

respondents, the same was never executed.  He further states that there  

was no warrant for execution against the disputed lands in favour of  

late Rahim Baksh Khan. He submits that there is nothing on record to  

show how the rights of the contesting respondents got extinguished. It  

is  his  further  submission  that  a  proper  enquiry,  as  required  under  

Evacuee Property Act, was not conducted with regard to the nature of  

the lands.  He submits that from the records, it can be made out that  

the Collector was informed by the Tahsildar that the lands in question  

were  in  the  name  of  Mandal  Bucham.  He  also  states,  that  the  

requirements of personal notice as per Rule 6 of the Administration of  

Evacuee Property (Central) Rules, 1950 [hereinafter referred to as ‘the  

EP Rules’] were not complied with. He also states that the contesting  

24

respondents  have  always  been  in  possession  of  the  said  lands,  as  

admitted by the Government, in its counter affidavit.  

36) With  regard  to  the  question  of  delay  and  laches  which  was  the  

forefront  of  the  submission  of  Shri.  Mukund,  learned  counsel,  he  

submits that the contesting respondents, who were poor and illiterate  

farmers,  have  been  continuously  making  representations  and  filing  

petitions before the various authorities,  from the time they had the  

knowledge of the status of the property being declared as evacuee till  

the filing of the writ petition in 1966. He further states that since they  

were in possession of the land, when they came to know that the said  

lands were being auctioned, they moved the High Court under Article  

226 of the Constitution, without further delay. He contends that there  

were no third party rights at least till  1966, and that the contesting  

respondents were in possession of the lands and were cultivating the  

same, and when their possession was threatened, they moved the High  

Court  for  appropriate  reliefs.   It  is  further  submitted that  the High  

Court has merely disposed of the writ petition filed only on the ground  

that  the  petitioners  therein  had  not  exhausted  alternate  remedy  

available to them under the Evacuee Property Act.   

25

37) Shri.  Ranjit  Kumar  further  submits  that  the  lands  allotted  to  Shri.  

Gopal  Das  and  Shri.  Jangimal  that  were  made  in  1968,  and  were  

cancelled by the Custodian, as the two allotees did not come forward  

to take possession of the same, vide order dt. 21.11.1987. With regard  

to the lands allotted to Shri. Mathuradas, the learned senior counsel  

would submit that this Court, by an order dt. 13.08.2007, dismissed  

the Special Leave Petition filed by the legal representatives of Shri.  

Mathuradas against the impugned judgment, on the ground of delay,  

as well as on merits.  

38) The learned senior  counsel  then drew our  attention  to  the  revision  

undertaken by an order of the Dy. Custodian General in the year 1970,  

who found that Shri. Mandal Bucham was the  pattedar and that the  

status of the lands required enquiry as there was no evidence to the  

claim that late Rahim Baksh Khan had purchased the said lands in an  

auction, as claimed by the appellants. Since the question of title was  

involved, the matter was rightly remanded back to the Collector-cum-

Dy.  Custodian,  who,  vide  order  dt.  28.05.1979,  came  to  the  

conclusion  that  the  lands  were  owned  by  the  ancestors  of  the  

contesting respondents and the revenue records support their case.    

26

39) The learned senior counsel also submits that the Order passed by the  

Chief  Settlement  Commissioner  dated  11.05.1983  is  manifestly  

illegal,  as  the  Collector-cum-Dy.  Custodian,  was  not  one  of  those  

authorities  whose  order  could  have  been  revised  by  the  Chief  

Settlement Commissioner in exercise of his jurisdiction under Section  

24 of the Displaced Persons Act.  Since the powers conferred under  

the  aforesaid  Section  is  only  to  revise  those  orders  passed  by  the  

officers  notified  under  the  provisions  of  Displaced  Persons  Act.  

Therefore, it is argued that the said order is one without jurisdiction.

40) Shri. Ranjit Kumar rebuts the claim of the appellants that notice was  

served on the contesting respondents. He states that notice could not  

have been served on legal heirs of late Rahim Baksh Khan, who were  

in Pakistan, and were unlikely to come back; no notice was issued to  

the contesting respondents. On a query from the bench regarding as to  

why the contesting respondents held an Ek Saala lease if they owned  

the property, he submits that there was absolutely no record to show  

that the rights of the contesting respondents had been extinguished.  

He further submits in rebuttal to the contention of the appellants of  

pursuing  the  wrong remedies,  by  stating  that  a  writ  petition  under  

Article  226  was  the  only  remedy  available,  as  Section  36  of  the  

27

Displaced Persons Act bars the jurisdiction of civil  courts.  He also  

states  that  the  argument  of  the  appellants  that  once  the  lands  are  

acquired by the Central Government under the Displaced Persons Act,  

the property ceases to be evacuee property and becomes the property  

of the Central Government, depends on the factor that the property is  

notified  as  evacuee  property  after  following  the  due  procedure  

prescribed  under  the  Evacuee  Property  Act  and  the  Rules  framed  

thereunder.  He  further urged that if the property in question is not  

evacuee property, there is no question of the coming into operation of  

the Displaced Persons Act.  

41) Shri.  Ranjit  Kumar  further  submits  that  the  appellants  are  not  the  

original allottees and they are only subsequent purchasers, from the  

general power of attorney (‘GPA’) holders of the original allottees. In  

some cases, he contends, the GPA holders have sold the property after  

the death of the principal, and in other cases, GPA holders of GPA  

holders of original allottees have sold the lands and in both cases, he  

submits that the same is impermissible in law.  He further contends  

that the allotment to Shri. Gopal Das and Shri. Jangimal was cancelled  

in the year 1989, the Special Leave Petition of Shri. Mathuradas had  

been dismissed in the year 2007, and that this Court had disallowed  

28

the substitution of the legal heirs of Smt. Eshwari Bai, on her death,  

due to which appellants cannot maintain these proceedings.   

42) In summing up his contention, the learned senior counsel states that  

the  Notification  dated  11.12.1952  issued  under  sub-Section  (1)  of  

Section 7 of the Evacuee Property Act was manifestly illegal and the  

disputed lands could not have been declared as evacuee property, as  

the owners were not evacuee; that the argument of delay and laches  

was not available to the appellants, as the original allottees who had  

claimed that they weren’t made a party have been heard at all stages  

right from the first writ petition in the year 1966; that the question of  

Ek Saala lease cannot be put against the respondents as the name of  

the contesting respondents was recorded in the Revenue records as  

owner of the lands; that the proceedings under the Displaced Persons  

Act can take place only if the proceedings under the Evacuee Property  

Act are validly made; that the proceedings under Section 24 of the  

Displaced Persons Act culminating in the order of Chief Settlement  

Commissioner in the year 1983 is illegal, for the reason it can be done  

only of those orders passed by the officers notified in Section 24 of  

the  Act,  and  that  the  order  of  Chief  Settlement  Commissioner  is  

without jurisdiction and hence is a nullity;  that the High Court could  

29

correct any manifest illegality, such as declaring the disputed lands as  

evacuee  property,  under  its  writ  jurisdiction,  which  need  not  be  

interfered  with  by  this  Court  under  Article  136;  that  the  disputed  

questions of fact had to be necessarily gone into by the High Court  

under its writ jurisdiction due to the bar of jurisdiction of other Courts  

by  virtue  of  Section  36  of  the  Displaced  Persons  Act;  that  the  

contesting respondents were in possession of the lands and continues  

to be so even till this day and this position is accepted by the State  

Government in the counter affidavit filed before this court; assuming  

that there was some delay on the part of the contesting respondents for  

redressal of their grievances before various forums, since the same has  

been condoned by the writ court, this court need not interfere with the  

said order.   

43) Shri. L. Nageshwar Rao, learned senior counsel who appears for the  

contesting respondents in the Special Leave Petition filed by the State,  

supplemented the arguments of Shri. Ranjit Kumar. He also submitted  

that the only issue was whether the nature of the property was such  

that  it  fell  within  the  ambit  of  evacuee  property  or  not.  He  also  

submits that if the facts were not gone into by the High Court, there  

could be no decision on this aspect, and once this aspect was decided  

30

in favour of the contesting respondents, then nothing remains to be  

decided by this Court.  

44) The learned counsel have referred to several case laws for the many  

propositions they have canvassed before us.  The relevance of these  

decision we will deal with at appropriate stage.     

45) In the background of these facts, the following questions arise for our  

consideration and decision:

(1) Whether the contesting respondents have been guilty of  delay and laches.

(2) Whether the dismissal of the writ petition No. 1051 of  1966  by  the  High  Court  decided  the  matter  fully  and  finally.

(3) Whether  the lands in question are evacuee property as  defined under the Evacuee Property Act.

(4) What is the effect and the consequence of the notification  issued under Section 12(1) of the Displaced Persons Act.  

(5) Whether the High Court could have gone into the facts  under its writ jurisdiction.    

46) Re : Delay and Laches   : -  Delay and laches is one of the factors that  

requires to be borne in mind by the High Courts when they exercise  

their  discretionary  power  under  Article  226  of  the  Constitution  of  

India.  In an appropriate case, the High Court may refuse to invoke its  

31

extraordinary powers if there is such negligence or omission on the  

part of the applicant to assert his rights taken in conjunction with the  

lapse of time and other circumstances.  The Privy Council in Lindsay  

Petroleum Company Vs. Prosper Armstrong Hurd etc; (1874) 5 PC  

221 at page 229, which was approved by this Court in  Moon Mills   

Ltd. Vs. Industrial Courts AIR 1967 SC 1450 and Maharashtra State  

Road Transport Corporation Vs. Balwant Regular Motor Service AIR  

1969 SC 329, has stated :-

"Now the doctrine of laches in Courts of Equity is not an  arbitrary  or  a  technical  doctrine.  Where  it  would  be   practically unjust to give a remedy, either because the   party has, by his conduct, done that which might fairly   be regarded as equivalent to a waiver of it, or where by   his  conduct  and  neglect  he  has,  though  perhaps  not   waiving  that  remedy,  yet  put  the  other  party  in  a   situation in which it  would not be reasonable to place  him  if  the  remedy  were  afterwards  to  be  asserted  in   either of these cases, lapse of time and delay are most   material. But in every case, if an argument against relief,   which  otherwise  would  be  just,  is  founded upon  mere  delay, that delay of course not amounting to a bar by any   statute of limitations, the validity of that defence must be  tried  upon  principles  substantially  equitable.  Two  circumstances, always important in such cases, are, the  length of the delay and the nature of the acts done during  the interval, which might affect either party and cause a   balance of justice or injustice in taking the one course or  the other, so far as relates to the remedy."

32

47)     In Amrit Lal Berry Vs. CCE (1975) 4 SCC 714, this Court took the  

view  that  “if  a  petitioner  has  been  so  remiss  or  negligent  as  to  

approach the  Court  for  relief  after  an inordinate  and unexplained  

delay,  he  certainly  jeopardises  his  claims  as  it  may  become  

inequitable,  with  circumstances altered by lapse  of  time and other   

facts,  to  enforce,  a  fundamental  right  to  the  detriment  of  similar   

claims of innocent third persons.”  

48) In State of Maharashtra Vs. Digambar (1995) 4 SCC 683, this Court  

observed that “unless the facts and circumstances of the case at hand   

clearly  justify  the  laches  or  undue  delay,  writ  petitioners  are  not   

entitled to any relief against any body including the State.”

49) In Shiv Dass Vs. Union of India (2007) 9 SCC 274, this Court opined  

that  “the High Court does not ordinarily permit a belated resort to   

the extraordinary remedy because it is likely to cause confusion and   

public inconvenience and bring in its train new injustices, and if writ   

jurisdiction  is  exercised after  unreasonable  delay,  it  may have  the  

effect  of  inflicting  not  only  hardship  and  inconvenience  but  also  

injustice  on  third  parties.  It  was  pointed  out  that  when  writ   

jurisdiction is invoked, unexplained delay coupled with the creation of   

33

third party rights in the meantime is an important factor which also  

weighs with the High Court in deciding whether or not to exercise   

such jurisdiction.”

50) In City and Industrial Development Corporation Vs. Dosu Aardeshir   

Bhinandiwala and others (supra), this court held :-

“It is well settled and needs no restatement at our hands that   under  Article  226 of  the  Constitution,  the  jurisdiction  of  a  High Court to issue appropriate writs particularly a writ of   Mandamus  is  highly  discretionary.  The  relief  cannot  be   claimed as of right. One of the grounds for refusing relief is   that  the  person  approaching  the  High  Court  is  guilty  of   unexplained delay and the laches. Inordinate delay in moving   the court  for a Writ  is  an adequate ground for  refusing a   Writ.  The  principle  is  that  courts  exercising  public  law  jurisdiction do not encourage agitation of stale claims and  exhuming matters where the rights of third parties may have   accrued in the interregnum.”

51) Shri Ranjit Kumar, learned senior counsel for contesting respondents,  

invites our attention to the observations made by this court in the case  

of State of M.P. and others Vs. Nandlal Jaiswal and others (1986) 4  

SCC 566, wherein this court has stated “this rule of laches or delay is   

not a rigid rule which can be cast in a straitjacket formula, for there   

may be cases where despite delay and creation of third party rights   

the High Court may still in the exercise of its discretion interfere and  

34

grant relief  to the petitioner.  But, such cases where the demand of   

justice  is  so  compelling  that  the  High Court  would  be inclined  to   

interfere inspite of delay or creation of third party rights would by  

their very nature be few and for between. Ultimately it would be a   

matter  within  the  discretion  of  the  Court  ex-hypotheses  every   

discretion must be exercised fairly and justly so as to promote justice   

and not to defeat it.”

52) Reliance is also placed on the observations made by this Court in M/s  

Dehri  Rohtas  Light  Railway  Company  Ltd.  Vs.  District  Board,   

Bhojpur and others (1992) 2 SCC 598, wherein it is observed :

“The rule which says that the Court may not enquire into  belated and stale claim is not a rule of law but a rule of   practice  based  on  sound  and  proper  exercise  of   discretion. Each case must depend upon its own facts. It   will  all  depend on what  the  breach of  the  fundamental   right and the remedy claimed are and how delay arose.   The  principle  on  which  the  relief  to  the  party  on  the   grounds  of  laches  or  delay  is  denied  is  that  the  rights   which have accrued to others by reason of the delay in   filing the petition should not be allowed to be disturbed  unless there is a reasonable explanation for the delay. The  real  test  to  determine  delay  in  such  cases  is  that  the   petitioner should come to the writ court before a parallel   right  is  created  and  that  the  lapse  of  time  is  not   attributable to any laches or negligence. The test is not to   physical  running  of  time.  Where  the  circumstances  justifying  the  conduct  exists,  the  illegality  which  is   manifest  cannot  be  sustained  on  the  sole  ground  of   laches.”  

35

53) The relevant considerations, in determining whether delay or laches  

should be put against a person who approaches the writ court under  

Article 226 of the Constitution is now well settled.  They are:  (1)  

there is no inviolable rule of law that whenever there is a delay, the  

court must necessarily refuse to entertain the petition; it is a rule of  

practice based on sound and  proper exercise of discretion, and each  

case must be dealt with on its own facts.  (2) The principle on which  

the court refuses relief on the ground of laches or delay is that the  

rights accrued to others by the delay in filing the petition should not  

be disturbed, unless there is a reasonable explanation for the delay,  

because  court  should  not  harm innocent  parties  if  their  rights  had  

emerged  by  the  delay  on  the  part  of  the  petitioners.   (3)  The  

satisfactory way of explaining delay in making an application under  

Article 226 is for the petitioner to show that he had been seeking relief  

elsewhere in a manner provided by law.  If he runs after a remedy not  

provided in the Statute or the statutory rules, it is not desirable for the  

High Court to condone the delay.  It is immaterial what the petitioner  

chooses to believe in regard to the remedy.  (4) No hard and fast rule,  

can be laid down in this regard.  Every case shall have to be decided  

36

on its  own facts.   (5)  That  representations  would  not  be  adequate  

explanation to take care of the delay.

54) Let us now advert to the contentions canvassed by learned counsel in  

this  regard.   Mr.  Mukund,  learned  counsel  for  the  appellants,  

submitted that the contesting respondent during the period 1951 till  

1955, had not taken any steps for redressal of their grievance, if any,  

including  challenging  the  notification  issued  by  the  competent  

authority  under  the  Evacuee  Property  Act  dated  11.12.1952.   He  

further submits that from 1955 till 1959, the contesting respondents  

were  making  representations  before  forums  which  could  not  have  

given them reliefs.  In spite of the counsel of the authorities that they  

should  file  either  appeal  or  revision  against  the  notification  issued  

under the Evacuee Property Act, they did not resort to those remedies.  

It is further contended that from the period 1959 till 1966, they did not  

choose to approach any authorities nor took any judicial action.  The  

learned counsel submits that for the first time, they approached the  

High Court by filing the writ  petition some time in the year 1966,  

inter-alia, claiming the relief of certiorari to quash the action of the  

authorities  for  auction  of  the  acquired  lands  under  the  Displaced  

Persons Act for grant of Ek saala lease, but, at the time of hearing of  

37

the  petition,  they  advanced  a  new  case  by  contending  that  an  

appropriate writ requires to be issued to quash the notification issued  

under the Evacuee Property Act.  It is further submitted that the High  

Court refused to grant the relief on the ground of delay and laches in  

approaching the court for quashing the notification of the year 1952  

and further on the ground that the writ petitioner has not availed the  

alternate  remedies  provided under  the  Evacuee  Property  Act.   The  

learned counsel submits by this order that the writ court has given a  

finding that at a belated stage, the writ petitioner cannot challenge the  

notification issued on 11.12.1952 under the provisions of the Evacuee  

Property Act.  The learned counsel further submits that after disposal  

of the writ petition, the contesting respondents had approached forums  

which could not have entertained their claim nor could have granted  

any relief.  It is further submitted even assuming that the respondents  

were knocking at the doors of the wrong forum, the same should not  

be held against them, may not come to their aid, since the third party  

rights  are  created  by  allotment  of  the  Evacuee  Property  to  the  

Displaced  Persons  under  the  Displaced  Persons  Act.   He  further  

submits that though the writ petition filed by one of the contesting  

respondents  was  dismissed  by  the  writ  court,  the  other  contesting  

38

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 Property.  Though they succeeded before that authority, the  

same was short  lived and the said  order  was  revised by the  Chief  

Settlement Commissioner at the instance of the allottees by his order  

dated 11.05.1983.  The learned counsel further submits that instead of  

questioning the said order before a proper forum, they approached the  

State  Government  to  revise  the  order  by  the  Chief  Settlement  

Commissioner  and  when  the  revision  petition  was  returned,  they  

approached the High Court by filing a writ petition to direct the State  

Government to invoke its power of `Suo-Moto’ revision, which came  

to be rejected on 26.07.1988.  Therefore, the learned counsel submits  

that the time spent from 1983 till  1988 cannot be considered to be  

satisfactory  explanation  since  they  were  seeking  reliefs  not  in  a  

manner provided by the law.  The learned counsel submits that after  

about two years of the dismissal of the writ petition, they filed yet  

another Writ Petition No.17722 of 1990, inter-alia, seeking initially a  

39

direction to respondent No.3 to conduct an enquiry into the question  

of title of disputed lands and also the correctness of the declaration of  

the said property as evacuee property, and again after almost seven  

years  of  filing  of  the  writ  petition,  an  amendment  was  sought  for  

quashing  the  Notification  dated  11.12.1952.    Therefore,  the  High  

Court  ought  not  have  entertained  the  writ  petition  in  view  of  the  

inordinate and unexplained delay.

55) Shri. Ranjit Kumar contends that the contesting respondents were and  

are in continuous physical possession of the lands and it is only when  

their possession was  threatened in the year 1966 by the Tahsildar for  

auctioning the lands to grant Ek saala lease, they had approached the  

High Court and prior to that, they were making  representations before  

the authorities  for  redressal  of  their  grievance.   The learned senior  

counsel  submits  that  the  appellants  have  not  placed  any  material  

before this Court that the contesting respondents were dispossessed  

from their lands and an inference should be drawn in favour of the  

respondents.  He also submits that though Sanads were given to the  

allottees, they were never put in possession of the property.  He states  

that even the Sanads so granted were cancelled on a later date since  

the allottee could not take possession of lands.  It is also contended  

40

that if there is any delay, it could only be after the 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 exercise of its  jurisdiction  

under Article 136 of the Constitution.

41

56) Since this issue requires to be answered in the light of the pleadings of  

the contesting respondents in the writ petition filed by them before the  

High Court, it is desirable firstly to notice what was their explanation  

pleaded in approaching the writ court nearly after 28 years from the  

date of the notification issued under the Evacuee Property Act.  We  

have carefully scanned through the pleadings in the writ petition and  

also the application filed for amendment nearly after eight years from  

the date of filing of the writ petition.  There is no explanation, much  

less satisfactory explanation except a very casual statement in para 4  

of the petition.  Therein, it is said:     

“4. That  in  the  meanwhile,  there  have  been various  proceedings  whereunder  the  petitioners  repeatedly   knocking the doors of   various authorities challenging   the  very  correctness  of  the  proceedings  treating  the   petitioners’ lands as evacuee.  However, no attempt was  made to go to root of the case and to find out, if really   said Rahim Bux or his family at time had any title, right   or interest to be declared as evacuee.  For no fault, the  petitioners are sought to be deprived of their legitimate  rights, without any justification or valid reason.”

57) In  the  counter  affidavit  filed  by  respondent  No.13  (Shankar  Co-

operative  Society),  they  had  specifically  contended  “that  the  writ  

petition is time barred and on the ground of latches, the writ petition is  

bound to be dismissed.  The petitioners are seeking quashing the order  

42

or  notification  of  the  year  1952 and an order  of  the  quasi-judicial  

authority of the year 1983 and of 1990 [Para 2(d)].  In para 23 of the  

counter  affidavit,  they  had also  asserted,  “that  the  petitioners  have  

referred to various representations alleged to have been made to the  

respondent authorities from time to time on various dates reflected in  

the petition.  They did not choose to file copies of all representations.  

On the other hand, it is reliably learnt that it is falsely made and such  

representations are filed.”

58) The High Court, in the course of its judgment and order, notices the  

specific allegations made by the respondents in their counter affidavit  

filed and the contention of the learned counsel in regard to delay and  

laches on the part of the petitioners in approaching the Court.

59) While answering 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  

43

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  

filed before the Court and the facts relied upon by him should be set  

out  clearly  in  the  body  of  the  petition.   An  excuse  that  he  was  

agitating  his  claims  before  authorities  by  making  repeated  

representations would not be satisfactory explanation for condoning  

the inordinate delay in approaching the Court.  If a litigant runs after a  

remedy not provided in the Statute or the statutory rules, it cannot be a  

satisfactory explanation for condoning the delay in approaching the  

Court.

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61) On this issue, we have heard the learned counsel for the parties in  

great detail, since the immoveable property rights of the parties are  

involved.  In our considered view, there is no explanation, much less  

satisfactory explanation offered by the respondents in approaching the  

writ court after an inordinate delay of nearly 15 years from the date of  

the notification issued under the Evacuee Property Act.  For the delay  

from 1952 to 1955, the contesting respondents would only submit that  

they  were  not  aware  of  the  notification  issued  under  the  Evacuee  

Property Act,  since no notice was served on them, though a public  

notice was issued by the authority under the Evacuee Property Act.  

While explaining the delay of nearly eleven years from 1955 to 1966,  

they contend that they were in possession of the property and they  

were making representations before the authorities under the Evacuee  

Property  Act  for  redressal  of  their  grievance.   The  delay  after  the  

orders were passed by the Settlement Commissioner in the year 1983  

till the writ petition was filed in the year 1990, it is explained that they  

had moved the State Government to suo-moto revise the order passed  

by  the  Chief  Settlement  Commissioner  and  since  the  State  

Government  returned  their  request,  they  had  approached  the  High  

Court to issue directions to the State Government to issue appropriate  

45

directions.   In  our  considered  view,  at  every  stage,  there  was  

inordinate delay in approaching the authorities for redressal of their  

grievance.  As rightly contended by Shri. Mukund, learned counsel,  

even when they approached the authorities, they were claiming wrong  

reliefs or incomplete reliefs.   Even when they filed the writ petition in  

the year 1990, they did not choose to question the correctness of the  

notification  issued  under  the  Evacuee  Property  Act  but  was  

questioned by way of  filing an amendment  application  in  the  year  

1998.  There is some merit in the submission made by learned counsel  

for the contesting respondents that the petitioners in their pleadings  

before the writ court, had not even offered any explanation, much less  

satisfactory explanation, in approaching the court  nearly after  three  

decades  from  the  date  of  notification  issued  under  the  Evacuee  

Property Act.  It is now well settled that the power of the High Court  

under  Article  226 of  the  Constitution  to  issue an  appropriate  writ,  

order or direction is discretionary.  One of the grounds to refuse relief  

by a  writ  court  is  that  the  petitioner  is  guilty  of  delay and laches.  

Inordinate and unexplained delay in approaching the court in a writ is  

indeed  an  adequate  ground  for  refusing  to  exercise  discretion  in  

favour of the petitioners therein.  The unexplained delay on the part of  

46

the  petitioner  in  approaching  the  High Court  for  redressal  of  their  

grievances  under  Article  226  of  the  Constitution  was  sufficient  to  

justify  rejection  of  the  petition.   The  other  factor  the  High  Court  

should have taken into consideration that during the period of delay,  

interest has accrued in favour of the third party and the condonatoin of  

unexplained delay would affect the rights of third parties.  We are also  

of  the  view  that  reliance  placed  by  Shri  Ranjit  Kumar  on  certain  

observations made by this Court would not assist him in the facts and  

circumstances of this case.  While concluding on this issue, it would  

be useful to refer the observations made by the Court in the case of  

Municipal Council Vs. Shaha Hyder Baig (2002) 2 SCC 48, wherein it  

is stated that ‘delay defeats equity and that the discretionary relief of   

condonation can be had, provided one has not given by his conduct,   

given a go by to his rights’.      

62) Re:  Effect of the judgment and order of the High Court in W.P.  

No. 1051 of 1966:-     

While narrating the facts, we have referred to the judgment and  

order  of  the  High Court  in  Writ  Petition  No.  1051 of  1966 dated  

14.06.1968.  The relief that was sought for by the petitioner therein  

47

was  to  issue  a  writ  or  direction  restraining  the  respondents  from  

auctioning the lands in pursuance of the letter of Tahsildar, Medchal  

dated 29.6.1966.  However, the High Court while dismissing the Writ  

Petition,  specifically has observed that what was challenged by the  

petitioner  in the Writ  Petition was the order  passed by the Deputy  

Custodian  of  Evacuee  property  under  Section  7  of  the  Evacuee  

Property Act declaring certain properties as evacuee properties.  The  

Court specifically notices the notification dated 11.12.1952 issued by  

the authorities under the Evacuee Property Act and observes that the  

petitioner had not availed the remedy provided under Section 24 of  

the Act, by way of an appeal.  In conclusion, it observes that petitioner  

without preferring an appeal has approached the Court at  a belated  

stage with a petition for issue of a writ.  Accordingly, the High Court  

had dismissed the petition with costs.  It is not in dispute nor it can be  

disputed that the said judgment and order has attained finality.  Sri  

Mukund,  learned  counsel,  submits  that  though  petitioner  had  

questioned  the  letter  of  the  Tahsildar,  Medchal  for  auctioning  the  

lands for grant of Ek saala lease,  at  the time of the hearing of the  

petition, there is possibility of the learned counsel for the petitioner to  

have questioned the notification issued under the Evacuee Property  

48

Act.   Since  by  then,  the  petitioner  had  the  knowledge  of  the  

notification issued under the Act, otherwise there was no reason for  

the  High  Court  to  have  specifically  noticed  the  notification  dated  

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.

49

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 conformity with zonal  

development plan, had attained finality. This Court has held that any  

subsequent order passed in ignorance of the order of the High Court  

which has attained finality is nullity. It was further observed:

“40. The learned Subordinate Judge has also passed  an order in a suit filed by one Balvant Rai in 1991.   What  was  the  nature  of  the  decree  passed  by  the   Subordinate Judge has not  been disclosed.  The only   contention raised in the list of dates is that the same  was a collusive suit. With whom, the said Balvant Rai   colluded or what was the nature and purport of the   decree had not been disclosed. Some orders appear to   have  been  passed  also  by  the  Additional  District   Judge. We do not know whether the Additional District   Judge has passed the order in the same proceeding or  in some other proceedings.  If the judgments directing   user  of  the  land  in  conformity  with  the  zonal   development  plan  and  further  directing  that  a   cremation  ground should not  be  allowed to  operate  become final,  an  order  passed  in  ignorance  thereof   would be a nullity.”[Emphasis supplied by us]

66) Once the order of the High Court has attained finality, then it is  

not open for the lower courts or even for the High Court to ignore the  

said  Order. In  A.P.  Housing Board v.  Mohd.  Sadatullah,  (2007)  6  

SCC 566, it was held:

50

“34. Though in the appeal filed by the A.P. Housing  Board in the present proceedings, it was asserted that   the decision of the High Court in Writ  Petition No.  4194 of 1988 was not final as appeal was filed against   the said decision, at the time of hearing of the appeal,   it was admitted that no such appeal was filed against   the judgment of the High Court and the decision had  attained finality. The consequence of the decision of   the High Court in the circumstances is that in respect   of  two  acres  of  land,  proceedings  under  the  Land  Acquisition Act were held bad, award nullity and the  landowner continued to remain owner of the property  with all rights, title and interest therein.    

41. In  our  opinion,  the  learned  counsel  for  the   original petitioner landowners is right in contending   that when the acquisition proceedings and award in  respect of two acres of land was held bad and nullity   by the High Court in previous proceedings, it was not   open to the Special Court or the High Court to ignore   the said order.”

67)        The Finality of Order by the High Court has been considered 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  

51

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  6  th     November,  1997. No appeal or revision was filed    against  that  order.  The  Order  dated  6  th     November,    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. The High Court was obviously not informed  of the Order dated 6  th     November, 1997. Thus the High    Court cannot be blamed. However as that Order has  been brought to notice of this Court we cannot ignore  it.”  

68)      In Food Corporation of India v. S.N. Nagarkar, (2002) 2 SCC 475,  

this Court has held:

“15. … In the instant case, the writ petition filed by   the  respondent  was  allowed  by  judgment  and order   dated 6thMay, 1994 passed in Civil Writ Petition No.   4983 or 1993.  That order attained finality as it  was  not  appealed  from.  In  execution  proceedings,  the   appellant cannot go beyond the order passed by the   Court in the writ petition and, therefore, what has to  be considered is whether the High Court was right in   holding that in terms of the order of the Court dated   6thMay, 1994 passed in Civil Writ Petition No. 4983 of   1993, the respondent is entitled to the arrears of pay  and  allowances  with  effect  from  the  date  of   promotions.  If  the  answer  is  in  the  affirmative,  the  question  whether  such  relief  ought  to  have  been   granted cannot be agitated in execution proceeding.   We find considerable force in the submission urged on   

52

behalf of the respondent. In these proceedings it is not   permissible  to  go  beyond  the  order  of  the  learned   Judge dated 6  th  May, 1994 passed in Civil Writ Petition    No.  4983 of  1993.  The  execution  application  giving  rise to the instant appeal was filed for implementing   the order dated 6  th  May, 1994 and in such proceeding,    it was not open to the appellant either to contend that   the  judgment  and  order  dated  6  th  May,  1994  was    erroneous  or  that  it  required  modification.  The   judgment and order aforesaid having attained finality,   has  to  be  implemented  without  questioning  its   correctness. The  appellant  therefore,  cannot  be  permitted  to  contend  in  these  proceedings  that  the   judgment and order dated 6thMay, 1994 was erroneous  in as much as it directed the appellant to pay to the  respondent arrears of salary with effect from the dates   of promotion, and not from the dates the respondent   actually joined the promotional posts.”

69)  In  Oriental  Bank of  Commerce  v.  Sunder  Lal  Jain and Anr.  

(2008) 2 SCC 280, the respondents had availed credit facility to the  

tune of `20 Lacs and defaulted in repaying the same to the Bank.  The  

Bank declared their  account as Non Performing Asset  and initiated  

recovery proceedings against the respondents before the DRT, which  

has  issued  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,  

53

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 attained finality and proceedings for   execution  of  decree  could  not  be  stayed  in  an  independent  writ  petition  when  the  respondents  had  not  chosen to assail  the decree by filing an appeal,   which is a statutory remedy provided under Section 20  of  Recovery  of  Debts  Due  to  Banks  and  Financial   Institutions Act, 1993.”

70) Doctrine of Amity and Comity requires the Court of Concurrent  

Jurisdiction  to  pass  similar  orders.  In  India  Household  and  

Healthcare Ltd. v. LG Household and Healthcare Ltd., 2007 (5) SCC  

510, this Court has held:

54

“The doctrine of comity or amity required a court not   to  pass  and  order  which  would  be  in  conflict  with  another order passed by a competent court of law.”

It was further held:

“17.  This  aspect  of  the  matter  has  been  considered   in A  Treatise  on  the  Law  Governing  Injunctions by  Spelling and Lewis wherein it is stated:

Section 8. Conflict and loss of jurisdiction. --Where a  court having general jurisdiction and having acquired  jurisdiction  of  the  subject-  matter  has  issued  an  injunction,  a  court  of  concurrent  jurisdiction  will   usually  refuse  to  interfere  by  issuance  of  a  second  injunction.  There is  no established rule  of  exclusion  which would deprive a court of jurisdiction to issue an  injunction  because  of  the  issuance  of  an  injunction  between  the  same  parties  appertaining  to  the  same  subject-matter,  but  there  is  what  may  properly  be  termed  a  judicial comity on  the  subject.  And  even  where it is a case of one court having refused to grant   an  injunction,  while  such  refusal  does  not  exclude   another coordinate court or Judge from jurisdiction,   yet the granting of the injunction by a second Judge   may lead to complications and retaliatory action....”

71) The issue before us is whether the judgment and order passed  

by the High Court in  the  writ  petition  filed  by  one  of  the  legal  

representatives  having attained finality  in  so far  as  the  notification  

dated 11.12.1952 issued under the Evacuee Property Act, could have  

been re-agitated by the other legal heirs of late Mandal Buchaiah and  

whether the authorities under the Evacuee Property Act could have  

55

gone beyond the Judgment and order passed by the Writ Court and  

whether the High Court was justified in the subsequent Writ Petition  

filed to have re-agitated the issue which had attained finality.

72) In  the  Writ  Petition  filed  by  Mandal  Anjaiah,  the  Regional  

Settlement  Commissioner  and  custodian  of  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  

56

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. 1051 of 1966 as also in  

Writ petition 7517 of 1983.  The Division Bench of the  High Court  

while  dealing with  this  aspect,  has observed in its  order  “it  is  not   

correct to read the Judgment dated 14.6.1968 rendered in W.P. No.   

1051  of  1966  that  this  Court  had  negatived  the  rights  of  the   

petitioners.   A  sentence  here  and  there  in  a  Judgment  cannot  be   

picked  up  in  construing  it.   A  Judgment  has  to  be  construed  on   

reading  and  understanding  as  a  whole  and  if  so  understood,  the   

judgment  in  W.P.  1051  of  1966  is  to  the   effect  that  in  the  writ   

petition, the rights of the parties cannot be adjudicated and more so   

in view of the fact that alternative remedy of appeal is available under   

the Act.  By that, it cannot be assumed that this Court had upheld the   

notification issued under Section 7 of the Act”.

73) We do not agree with the reasoning and conclusion reached by  

the  Division  Bench of  the  High Court.   We do not  think  that  the  

decision of the court has been correctly read.  However, we do agree  

with the learned Judges that the Judgment should be read as a whole  

and understood in the context and circumstances of the facts of that  

57

case.  In this context, it is worthwhile to recall the observations made  

by this court in the case of U.P. State Road Transport Corporation v.   

Asstt.  Commissioner  of  Police  (Traffic)  Delhi [2009(3)  SCC 634],  

wherein it is observed that “a decision is an authority, it is trite for   

which it decides and not what can logically be deduced therefrom.   

This  wholesome  principle  is  equally  applicable  in  the  matter  of   

construction of a judgment.  A judgment is not to be construed as a   

Statute.  It must be construed upon reading the same as a whole.  For  

the said purpose, the attending circumstances may also be taken into   

consideration.”

74) At the cost  of  repetition,  we once again intend to notice the  

judgment and order passed by the High Court in W.P. No. 1051 of  

1966.  The Court, while narrating the facts, specifically observes that  

what  is  challenged  before  it  by  the  petitioner  was  the  notification  

dated 11.12.1952 issued under Section 7 of the Evacuee Property Act  

declaring certain properties as evacuee properties.  While dismissing  

the writ petition, the Court has observed that petitioner has failed to  

avail the alternate remedy of appeal provided under the Act and at the  

belated stage, he cannot question the correctness or otherwise of the  

notification dated 11.12.1952.  Therefore, it may not be correct to say  

58

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.  The course adopted by  

the  High  Court  not  only  leads  to  confusion  but  also  leads  to  

inconvenience.  We also hold that the Judgment and order of the High  

Court was binding on the authorities under the Evacuee Property Act  

59

and,  therefore,  they  could  not  have  reagitated  the  correctness  or  

otherwise of the notification dated 11.12.1952 issued under Section 7  

of the Evacuee Property Act.       

75) Shri.  Ranjit  Kumar, learned senior counsel,  contends that the  

writ  petition  was  filed  by  one  of  the  co-owners  of  late  Mandal  

Buchaiah and judgment and order passed would not bind the other  

parties.  We cannot agree.  It is a settled law that no co-owner has a  

definite  right,  title  and  interest  in  any  particular  item  or  portion  

thereof.  On the other hand, he has right, title and interest in every part  

and parcel of the joint property or coparcenery under Hindu Law by  

all the coparceners.  Our conclusion is fortified by the view expressed  

by  this  court  in  A.  Viswanath  Pillai  and  Others vs.  The  Special   

Tahsildar for Land Acquisition No.IV and Others (1991) 4 SCC 17),  

in which this Court observed:

“It is settled law that one of the co-owners can file a   suit  and recover the property against strangers and  the  decree  would  enure  to  all  the  co-owners.  It  is   equally  settled  law that  no co-owner  has a definite   right,  title  and interest  in  any  particular  item or  a  portion thereof. On the other hand he has right, title   and  interest  in  every  part  and  parcel  of  the  joint   property or coparcenery under Hindu law by all the   coparceners. In  Kanta Goel v.  B.P. Pathak (1977) 2   SCC 814, this Court upheld an application by one of   the  co-owners  for  eviction of  a  tenant  for  personal   occupation of the co-owners as being maintainable.   

60

The same view was reiterated in Sri Ram Pasricha v.   Jagannath (1976) 4 SCC 184 and Pal Singh v. Sunder  Singh...”

“....A co-owner is as much an owner of the entire   property  as  a  sole  owner of  the  property.  It  is  not   correct to say that a co-owner’s property was not its   own. He owns several parts of the composite property   alongwith others and it cannot be said that he is only   a part owner or a fractional owner in the property.   That  position  will  undergo  a  change  only  when  partition  takes  place  and  division  was  effected  by   metes  and  bounds.  Therefore,  a  co-owner  of  the  property  is  an  owner  of  the  property  acquired  but   entitled to receive compensation pro rata.”

76) Re.  Constructive  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,  

61

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 SC 1150], has observed  

that “the rule of constructive res judicata that of a plea could have   

been taken by a party in a proceeding between him and his opponent,   

he would not be permitted to take that plea against the same party in   

a subsequent proceeding, which is based on the same cause of action,   

is  founded  on  the  same  considerations  of  public  policy.   If  the   

doctrine  of  constructive  res  judicata  is  not  applied  to  writ   

proceedings, it would be open to the party to take proceedings one   

after another and urge new grounds every time, and that plainly is   

inconsistent  with considerations of Public policy.”

78) In the present case, it is admitted fact that when the contesting  

respondents  filed  W.P.  No.  1051  of  1966,  the  ground  of  non-

compliance of statutory provision was very much available to them,  

62

but for the reasons best known to them, they did not raise it as one of  

the  grounds  while  challenging  the  notification  dated  11.12.1952  

issued  under  the  Evacuee  Property  Act.   In  the  subsequent  writ  

petition filed in the year 1990, initially, they had not questioned the  

legality of the notification, but raised it by filing an application, which  

is no doubt true, allowed by the High Court.   In our view, the High  

Court was not justified in permitting the petitioners therein to raise  

that  ground  and  answer  the  same,  since  the  same  is  hit  by  the  

principles analogous to constructive res judicata.

79) Re: Whether the High Court could have gone into the facts  

under  its  writ  jurisdiction:-  The  learned  counsel  Shri  Mukund  

contends that the High Court in exercise of its power under Article  

226 of the Constitution of India ought not have gone into the disputed  

facts and render a finding on those facts.  The learned counsel invites  

our attention to the observations made by this Court in Surya Dev Rai  

vs. Ramchander Rai and Others (2003) 6 SCC 675,  Ranjit 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. Per contra, Shri Ranjit Kumar, learned  

senior counsel  submits that since there is a bar for filing civil  suit  

63

under Section 28 and Section 48 of  the Evacuee Property Act and  

Section 36 of the Displaced Persons Act, the High Court necessarily  

has to go into disputed question of facts.  In aid of his submission, the  

learned senior counsel has relied on the decisions of 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,  

64

under  the  Evacuee  Property  Act,  there  is  specific  bar  for  the  civil  

court to adjudicate on the issue whether certain property is or is not  

evacuee property.  This issue can be decided only by the custodian  

under the Act.  Any person aggrieved by the findings of the custodian  

can avail the other remedies provided under the Act.  The findings and  

the  conclusion  reached  by  the  authorities  under  the  Act  in  an  

appropriate case can be questioned in a petition filed under Article  

226 of the Constitution even it involves disputed questions of facts.  

This issue, in our view, is no more res integra in view of three Judge  

Bench decision of this Court in Jafran 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  

71

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 Baksh  

Khan and his legal  representatives  were  in possession of  the lands  

under  dispute.   It  is  also  submitted that  the  contesting  respondents  

took the said lands on Ek saala lease from the Government in the year  

1952 to 1955 and only in the year 1956, they made representation for  

the  redressal  of  their  grievance  before  the  authorities  under  the  

Evacuee Property Act and since those representations did not yield  

any result, they approached the High Court only in the year 1966 only  

questioning the action of Tahsildar who had proposed to auction of  

the lands for grant of Ek saala lease.  However, Shri Ranjit Kumar  

would submit that late Rahim Baksh Khan never became the owner of  

the  lands  since  he  did  not  execute  the  money  decree  that  he  had  

72

obtained from a civil court.   The learned senior counsel by placing  

reliance on various provisions of the Evacuee Property Act and the  

rules  framed  thereunder,  submits  that  since  procedure  prescribed  

under the Evacuee Property Act is not followed, the authorities under  

the  Act  could  not  have  declared  the  disputed  lands  as  evacuee  

property.  It is submitted that the order passed under Section 7 of the  

Evacuee Property Act is manifestly illegal and the illegality cannot be  

perpetuated against the contesting respondents since they are owners  

and  in  continuous  possession  of  the  property.   The  learned  senior  

counsel also submits that except the notification issued under Section  

7 of the Act, no other document such as order passed under the Act  

after notice to the persons interested in the lands is produced by the  

State Government in whose custody the records of the proceedings  

were available.  Therefore, Deputy Custodian General was justified in  

setting  aside the  declaration  made under  Section 7 of  the  Evacuee  

Property Act which order has merged with the impuged judgment and  

order of the High Court.  However, learned counsel for the State of  

Andhra Pradesh by referring to their counter affidavit filed in the writ  

petition before the High Court submits that the authority under the Act  

before issuing notification under Section 7 of the Evacuee Property  

73

Act,  the  procedure  prescribed  therein  had  been  followed  and  this  

assertion had not been denied by the respondents by filing their reply  

affidavit and since no denial of the factual assertion made by the State  

Government, the only inference that can be drawn is that the proper  

procedure prescribed under the Act had been followed before issuing  

the notification under the Evacuee Property Act.   

(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  

74

law.   This  reasoning  of  the  learned  Judges  is  firstly  difficult  to  

comprehend and secondly, difficult to accept.  It is the specific case  

of the appellants, by placing reliance on the revenue records, that the  

name of late Rahim Baksh Khan found a place in the revenue records  

prior  to  issuance  of  the  notification  dated  11.12.1952  under  the  

Evacuee Property Act and, thereafter,  the name of the custodian is  

shown as the owner of the lands.  The burden of proof was on the  

petitioners  therein  to  prove  their  title,  right  and  interest  in  the  

property.  It looks again very strange to us that the High Court, in the  

absence of any records of the year 1952, proceeds to determine that  

the official respondents had not followed the mandatory requirement  

of  the  provisions  of  the  Evacuee  Property  Act  and  rules  framed  

thereunder before declaring the disputed lands as evacuee property.  It  

also looks odd and queer to us that the High Court, in the absence of  

any records of the civil  court  and the executing court,  proceeds to  

arrive at  a  definite  finding that  the sale of property had not  taken  

place.  Pursuant to the money decree passed, the executing court had  

not auctioned disputed lands and late Rahim Baksh Khan became the  

owner of the lands, though it concedes that the above facts have to be  

proved with reference to the records and there cannot be oral evidence  

75

in this regard.  To say the least, it was highly inappropriate for the  

High Court to have proceeded to determine whether any notice was  

issued  to  late  Mandal  Buchaiah  before  notifying  the  property  as  

evacuee property without there being any material nor the documents  

and records by relying only on the procedure prescribed under the Act  

and the rules thereunder, even after noticing that both the parties have  

not produced any records, since the records are old and not traceable.  

In  view of  the  above,  we are  of  the  opinion,  the  High Court  was  

wholly incorrect  when it  arrives at a finding that there is  manifest  

illegality while issuing notification under Section 7 of the Evacuee  

Property Act.  For the very same reason, we cannot also accept the  

findings  and  the  conclusion  reached  by  the  Collector-cum-Deputy  

Custodian in his order dated 28.05.1979.     

(93) The High Court in the impugned Judgment, also gives a finding  

that  the  authorities  under  the  Act  have  violated  the  principles  of  

natural  justice  in  not  issuing  notice  to  the  owners  of  the  lands  in  

dispute before taking any action under the Act.  We are of the view  

that whether any notice under the Act was issued or not, can only be  

decided  with  reference  to  the  records.   Such  records  were  neither  

available nor any material was produced by the petitioners in support  

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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  

Dafedar  Niranjan  Singh  and  Another  vs.  Custodian,  Evacuee   

Property (Pb.) and Another (1962) 1 SCR 214.

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(95) In Major Gopal Singh’s case, this Court held that “the power of   

the  Custodian  under  the  Administration  of  Evacuee  Property  Act,   

1950,  to allot  any property  to a  person or to  cancel  an allotment   

existing in favour of a person rests on the fact that the property vests   

in him.  But the consequence of the publication of the notification by   

the  Central  Government  under  Section  12(1)  of  the  Displaced   

Persons (Compensation and Rehabilitation) Act with regard to any   

property  or  a  class  of  property  would  be  to  divest  the  custodian   

completely of his right in the property flowing from Section 8 of the   

Administration  of  the  Evacuee  Property  Act,  1950  and  vest  that   

property in the Central Government.”

(96) In Basant Ram’s case, this Court held that “It is not in dispute   

that the evacuee property in these  two villages was notified under   

Section 12(1) of the Act on March 24, 1955.  The consequence of that   

notification is that all rights, title and interest of the evacuee in the   

property  ceased with the result that the property no longer remained  

evacuee property.  Once, therefore, the property ceased to be evacuee   

property, it cannot be dealt with under Central Act No. XXXII of 1950  

or the Rules framed thereunder.”

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(97) Shri Ranjit Kumar’s submission is that the proceedings under  

the 1954 Act only happen if the proceedings under the 1950 Act are  

valid.  If the proceedings under 1950 Act is invalid, the 1954 Act does  

not come into operation.  To demonstrate that, the proceedings under  

the  Evacuee  Property  Act  is  invalid  for  want  of  notice  on  the  

person/persons who would be effected by an order under the Act, the  

learned  senior  counsel  has  relied  on the  observations  made  by the  

High Court of Bombay in the case of Abdul Majid Hazi Mohammed  

vs.  P.R.  Nayak (AIR 1951 Bombay  440),   wherein   the  Court  has  

observed that mode of service of notice under Section 7 of Act read  

with Rule 25 of the Rules, contents of the notice and the nature of the  

order that requires to be passed by the Custodian under the Evacuee  

Property Act.

(98) In  Dr. Zafar Ali Shah and Others vs. The Assistant Custodian  

of  Evacuee  Property  [1962]  1  SCR  749,  wherein  this  Court  has  

observed that Section 12 of Displaced Persons Act, 1954 only affects  

the rights of Evacuee in his property.  The 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.

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(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  other  or  whether  they  are  

complimentary and the action of one Act has some bearing on the  

other Act which we are concerned in these appeals.

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(102) The Evacuee Property Act was mainly intended to provide for  

the  administration  of  evacuee  property.   The  Act  is  primarily  

concerned with evacuee property and not the person who is evacuee.  

The  procedure  prescribed  to  declare  a  particular  property  as  an  

evacuee property is mandatory and they are to be complied with by  

the  authorities  notified  under  the  Act  and  the  Rules  framed  

thereunder.  The Act is a complete code itself in the matter of dealing  

with evacuee property.  The question whether any property or right or  

interest  in  any  property  is  or  is  not  evacuee  property  can  be  

adjudicated only by the custodian and not the civil courts.  Section 7  

of the Act confers the power upon the custodian to declare certain  

property as evacuee property.  Sub-section (1) provides that where the  

custodian  is  of  the  opinion  that  any  property  is  evacuee  property  

within the meaning of Section 2(f) of the Evacuee Property Act, then  

he may pass an order declaring such property to be evacuee property,  

provided he causes notice thereof to be given in such manner as may  

be prescribed to the persons interested and he holds such inquiry into  

matter as the circumstances of the case permit.  Section 8(1) of the  

Act envisages that once the property has been declared to be evacuee  

property  under  Section  7,  that  property  must  be  deemed  to  have  

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vested in the custodian for the State.   Section 8(4)  contemplates a  

situation  even  where  any  evacuee  property  has  vested  in  the  

custodian, any person is in possession thereof shall be deemed to be  

holding it on behalf of the custodian.  Section 9 gives the power to the  

custodian to take possession of evacuee property which is vested in  

him.  Section 24 confers a right of appeal against the orders passed  

under Section 7, 40 and 48 of the Act.  Section 27 confers on the  

Custodian General the power of revision to revise the orders under the  

Act  either  `suo-moto’  or  on  an  application  filed  by  the  aggrieved  

person.   Section  28  bars  the  jurisdiction  of  the  civil  courts  from  

entertaining suits relating to matters within the exclusive jurisdiction  

of the custodian. But Section 28 or Section 46 of the Act cannot bar  

jurisdiction of the High Court under Article 226 of the Constitution.  

The question whether evacuee 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.

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(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  Government  is  of  opinion  that  it  is  necessary  to  acquire  any  evacuee  property  for  a  public purpose, being a purpose connected with the  relief  and  rehabilitation  of  displaced  persons,  including  payment  of  compensation  to  such  persons, the Central Government may at any time  acquire such evacuee property by publishing in the  Official Gazette a notification to the effect that the  

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Central  Government  has  decided  to  acquire  such  evacuee property in pursuance of this section.  

(2) On  the  publication  of  a  notification  under  sub-section (1),  the right,  title  and interest  of any  evacuee  in  the  evacuee  property  specified  in  the  notification shall, on and from the beginning of the  date on which the notification is so published, be  extinguished  and  the  evacuee  property  shall  vest  absolutely in the Central Government free from all  encumbrances.

(3) It shall be lawful for the Central Government,  if it  so considers necessary, to issue from time to  time the notification referred to in sub-section (1) in  respect of— (a) all evacuee property generally; or (b) any class of evacuee property; or (c) all  evacuee  property  situated  in  a  specified  area; or (d) any particular evacuee property.

(4) All  evacuee  property  acquired  under  this  

Section shall form part of the compensation  

pool.”

(105) At  the  cost  of  repetition,  let  us  once  again  notice  the  

submissions made by learned counsel for the parties.  Shri Mukund,  

learned counsel for the appellant submits that once the notification is  

issued under Section 12 of the Displaced Property Act, the evacuee  

property notified under the Evacuee Property Act no more exists and  

therefore, the authorities under the Evacuee Property Act could not  

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have  passed  the  order  dated  25.09.1970  and  28.05.1979  and,  

therefore, Chief Settlement Commissioner of Displaced Persons Act  

was  justified  in  passing  the  order  dated  11.05.1983.   The  learned  

senior counsel Shri Ranjit Kumar would submit that since there was  

irregularity in declaring the disputed lands as evacuee property, the  

Deputy  Custodian  General  was  justified  in  setting  aside  the  

notification declaring the disputed land as evacuee property.

(106) Section  12  of  the  Act  authorizes  the  Central  Government  to  

acquire the evacuee property if it so desires and on such acquisition  

the property shall vest absolutely in the Central Government free from  

all  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  

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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,   

those would not be the orders passed under the Act.”   

(107) While  answering  the  issue  whether  the  ‘disputed  lands’  is  

evacuee  property  or  not,  we have  held  that  the  notification  issued  

under  Section  7  of  the  Evacuee  Property  Act  is  valid  in  law and,  

therefore,  one and the only conclusion that  can be reached on this  

issue is,  in the facts  and circumstances of  the case,  in view of the  

notification  issued  by  the  Central  Govt.  under  Section  12  of  the  

Displaced  Persons  Act,  for  the  ‘disputed  lands’  had  vested  in  the  

Central Govt. and thereby had lost the status of evacuee property.      

(108) Shri Ranjit Kumar also submitted that the order passed by the  

Chief Settlement Commissioner is one without jurisdiction, since the  

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said authority can exercise  his power of revision to set a side any  

order  passed  by  any of  the  officers  named in  that  Section.   Since  

Deputy Custodian General is not one of those officers named in that  

sub-section, he could not have exercised his power  of revision against  

an order passed by Deputy Custodian General dated 28.05.1979.

(109) Section 24 of the Act speaks of power of revision of the Chief  

Settlement Commissioner.  The said Section reads :-

“Power  of  revision  of  the  Chief  Settlement   Commissioner – (1) The Chief Settlement Commissioner  may at any time call for the record of any proceeding   under  this  Act  in  which  a  Settlement  Officer,  an   Assistant  Settlement  Officer,  an  Assistant  Settlement   Commissioner,  an  Additional  Settlement  Commissi   oner,  a Settlement  Commissioner,  a Managing officer   or a managing corporation has passed an order for the  purpose  of  satisfying  himself  as  to  the  legality  or   propriety of any such order and may pass such order in   relation thereto as he thinks fit.”

(110)  Section  24  of  the  Act  gives  power  of  revision  to  Chief  

Settlement  Commissioner  either  on his  motion  or  an application  

made to him to call for the record of any proceeding under the Act  

in order to satisfy himself as to legality or propriety of any order  

passed therein and to pass such order in relation thereto as he thinks  

fit.  The Section also provides that the said powers can be used in  

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relation  to  the  orders  passed  by  Settlement  Commissioner,  an  

Assistant  Settlement  Commissioner,  an  Additional  Settlement  

Commissioner, a Settlement Commissioner, a Managing officer or  

a managing corporation.  A bare reading of the Section shows that  

the Chief Settlement Commissioner can revise the order if in his  

opinion that the orders passed by the officers named in the Section  

are  either  illegal  or  improper.   In  the  instant  case,  the  Chief  

Settlement Commissioner has invoked his revisional powers at the  

request of the allottees/displaced persons to revise the proceedings  

and the order passed by the Collector-cum-Deputy Custodian under  

the provisions of the Evacuee Property Act dated 28.05.1979.  In  

view of  the  plain  language  of  the  Section,  there  cannot  be  two  

views.   In our view, what the Chief Settlement Commissioner can  

do is  only to revise the orders passed by those officers who are  

notified  in  the  Section  itself  and  not  of  the  officers  under  the  

provisions of the Evacuee Property Act, if the orders passed by the  

named officers in this Section is either illegal or improper.  To this  

extent,  we  are  in  agreement  with  the  submission  made  by  the  

learned senior counsel Shri  Ranjit Kumar.  Therefore, the orders  

passed by the Chief  Settlement  Commissioner  in  exercise  of  his  

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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 entertained and granted  

relief  to  the  writ  petitioner/contesting  respondents,  since  

there was inordinate and unexplained delay in approaching  

the court.

(II) The Judgment and order of the High Court in W.P. No. 1061  

of  1966  having  attained  finality  was  binding  on  the  

authorities  under  the  Evacuee  Property  Act  and  the  High  

Court  ought  not  to  have  permitted  the  writ  

petitioners/contesting  respondents  herein  to  re-agitate  the  

correctness or otherwise of the notification dated 11.12.1952  

in the subsequent writ petition.   

(III) A subsequent writ petition was not maintainable in respect of  

an  issue  concluded between  the  parties  in  the  earlier  writ  

petition.   

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(IV) In view of the specific bar under Section 46 of the Evacuee  

Property  Act,  writ  petition  filed  by  the  contesting  

respondents before the High Court was maintainable.   

(V) Since we have taken exception to the orders passed by the  

Collector-cum-Deputy  Custodian  and  the  Judgment  and  

order passed by the High Court in  W.P. No. 17222 of 1990,  

we hold notification dated 11.12.1952 is valid in law.   

(VI) Since the notification issued under Section 7 of the Act is  

valid in law, the evacuee property acquired by the Central  

Govt. under Section 12 of the Displaced Persons Act ceases  

to  be  evacuee  property  and  becomes  the  property  of  the  

Central Govt.  

(VII) In view of the clear language employed in Section 24 of the  

Act, the Chief Settlement Commissioner had no jurisdiction  

to  revise  the  order  passed  by  the  Collector-cum-Deputy  

Custodian under the Evacuee Property Act.   

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(112) In view of the above discussion, the appeals are allowed.  The  

Judgment and order passed by the High Court in W.P. 17222 of  

1990 dated 27.04.2000 is set aside.  Costs are made easy.   

        …………………………J.

                                                                                         [ D.K. JAIN ]

      …………………………J.                [ H. L. DATTU ]

New Delhi,  May 05, 2011.

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