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1963 (11) TMI 82 - SC - Indian Laws

Issues Involved:
1. Justification of the High Court of Orissa in issuing a writ under Article 226.
2. Nature of the grant and title conferred on the ex-Zamindars.
3. Jurisdiction of the High Court under Article 226.
4. Validity of the appellant's resumption of grants without a suit.
5. Legal effect of continuous possession by the respondents.

Issue-wise Detailed Analysis:

1. Justification of the High Court of Orissa in issuing a writ under Article 226:
The primary question was whether the High Court of Orissa was justified in issuing a writ directing the appellant State of Orissa not to dispossess the respondents of the 'Maliahs' without their consent otherwise than in due course of law. The High Court had issued such a writ based on the respondents' long possession of the properties and their apprehension of dispossession by executive action. The High Court believed that possession of the lands for more than 80 years by the ex-Zamindars afforded evidence of a right that could sustain their petitions under Article 226. However, the Supreme Court held that the High Court was in error in issuing the writ without determining the question of title, as the existence of a right is the foundation of a petition under Article 226.

2. Nature of the grant and title conferred on the ex-Zamindars:
The main dispute was regarding the nature of the grant and the title conferred on the ex-Zamindars by virtue of the said grant. The ex-Zamindars contended that they had proprietary interests in the areas granted to them, while the appellant argued that the grants were service tenures resumable at the will of the appellant. The High Court did not decide on this question of title, deeming it appropriate for a properly constituted suit. The Supreme Court agreed that the question of title should be decided in a regular suit and not in writ proceedings under Article 226.

3. Jurisdiction of the High Court under Article 226:
The Supreme Court acknowledged that the jurisdiction of the High Court under Article 226 is very wide and can be invoked for purposes other than the enforcement of fundamental rights. However, it emphasized that before a writ can be issued, it must be established that the party has a right and that the right is illegally invaded or threatened. The High Court's refusal to consider the controversy on the merits meant that the respondents could not rely on their case of having a proprietary interest, thus failing to prove any legal right justifying the issuance of the writ.

4. Validity of the appellant's resumption of grants without a suit:
The High Court had assumed that the appellant was not entitled to recover possession of the properties after resuming the grants without filing a suit. The Supreme Court did not express an opinion on whether the grants were resumable or if the appellant could recover possession without a suit. It noted that ordinarily, where property granted by the State is resumable, the grantee would move the Court for relief after resumption. The Supreme Court found that the High Court's issuance of the writ, which would result in the respondents remaining in possession until the appellant filed a suit, was unjustified without determining the questions of title.

5. Legal effect of continuous possession by the respondents:
The respondents argued that their continuous possession of the properties for many years constituted a right that should be protected by a writ. The Supreme Court rejected this argument, stating that mere possession, regardless of duration, does not confer any legal right if the possession is under a resumable grant from the State. It held that long possession may give a legal right against third parties, but not against the State, unless the grant is determined to be non-resumable. The Supreme Court concluded that the High Court was in error in issuing the writ based on the respondents' possession without establishing their right to remain in possession against the appellant.

Conclusion:
The Supreme Court allowed the appeals, setting aside the High Court's orders and holding that the High Court was in error in issuing the writs without determining the questions of title. The existence of a right is the foundation of a petition under Article 226, and without establishing such a right, the issuance of a writ was not justified. The Supreme Court emphasized that questions of title should be decided in a regular suit, and mere possession does not confer a legal right against the State in the context of resumable grants.

 

 

 

 

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