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TMI Blog2011 (5) TMI 906X X X X Extracts X X X X X X X X Extracts X X X X ..... n filed by the State of Andhra Pradesh. 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 L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. 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 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 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 wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciety 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 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 representation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 was issued [period between 1951 to 1955], after which they made repeated representations to the authoriti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 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 Ka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 come ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hing 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 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 petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion and hence is a nullity; that the High Court could 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elay 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. 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 pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 contes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntesting 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 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- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... latches, the writ petition is bound to be dismissed. The petitioners are seeking quashing the order 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vailed 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 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n such proceeding, it was not open to the appellant either to contend that the judgment and order dated 6th M ay, 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven 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 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 representat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 that the court had rejected the writ petition only on the ground that the petitioner without availing the alternate remedy provided under the Act, co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht, 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. 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 procedur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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, O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. (5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (iii( a grave injustice or gross failure of justice has occasioned thereby. (83) In Ranjeet Singh's case (supra), this Court, while explaining the jurisdiction of the High Court in exercise of its power under Article 226 and 227 of the Constitution, held :- Feeling aggrieved by the judgment of the Appellate Court, the respondent preferred a writ petition in the/High Court of Judicature at Allahabad under Article 226 and alternatively under Article 227 of the Constitution. It was heard by a learned Single Judge of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on sound judicial principles. When the petition raises questions of fact of a complex nature, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute may not appropriately be tried in a writ petition, the High Court may decline to try a petition. (87) In Om Prakash Vs. State of Haryana and others (1971) 3 SCC 792, this Court observed :- The two judgments referred to by the High Court proceeded on the ground that the High Court would not in deciding a petition for a writ under Article 226 of the Constitution enter upon disputed questions of fact. But whether in the present case there are disputed questions of fact of such complexity as would render it inappropriate to try in hearing a writ petition is a matter which has never been decided. There is no rule that the High Court will not try issues of fact in a writ petition. In each case the court has to consider whether the party seeking relief has an alternative remedy which is equally efficacious by a suit, whether refusal to grant relief in a writ petition may amount to denying relief, whether the claim is based substantially upon considerati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r s. 28 cannot bar the jurisdiction of the High Court Art. 226 of the Constitution, for that is a power conferred on the High Court under the Constitution. (90) We are of the view that the High Court has not committed an error while entertaining a writ petition filed under Article 226 and 227 of the Constitution, wherein the proceedings under Section 7 of the Evacuee Property Act was questioned. We say so for the reason that 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 Prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned 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 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 Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eunder. (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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 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 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 exception ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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