# HOSHNAK SINGH v. UNION OF INDIA & ORS

- **Citation:** [1979] 3 S.C.R. 399
- **Court:** Supreme Court of India
- **Decided:** 1979-02-27
- **Case number:** Civil Appeal No. 2082 of 1969
- **Bench:** P. N. Shinghal, D. A. Desai
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/hoshnak-singh-v-union-of-india-ors-7624
- **Pages:** 20

## Headnote

Displaced Persons (Compensation & Rehabilitation) Act, 1954-Ss. 10' &
12-Scope of.
Res judicata-Principles analogous to res judicata when could be invoked.
A
B
A part of the land allotted to the appellant on quasi-permanent basis as a
displaced person from West Pakistan was acquired by the Government.
Wben
C
the question of payment of compensation in respect of the land acquired w:.1s
pending, the Displaced Persons (Compensation and Rehabilitation) Act, 1954
was passed which enabled holders of quasi-pe.rmanency rights to obtain perntanent settlement pursuant to which permanent settlement in respect of acquired
land was made in favour of the appellant.
AJJeging that the land allotted to the appellant was not allottable on a pcrrnaD
nent basis, the Chief Settlement Commissioner, by his order dated 17th March,
1961, cance11ed the allotment. The appellant's petition questioning the correctness of this decision was dismissed by the High Court in limine.
Thereupon the appellant preferred a petition under s. 33 of the Act to the
Joint Secretary to the Government of India, Rehabilitation Department, challenging the order of the Chief Settlement Commissioner.
By his order dated 29th
September, 1964 the Joint Secretary rejected the petition pointing out that the
cancellation of the appellant's permanent settlement rights in the land was in
accordance with law and that no interference was called for.
lbe appellant filed a writ petition in the High Court.
In rejecting
the
appellant's writ petition
impugning the
order dated
29th September, 1964 the High Court was of the view that it was barred by princinfes
E
analogous to res judicata because if that petition were
aI1owed, it would in
F
effect, amount to cancellation of the order dated the 17th March, 1961 which
beclame final as against the appellant on dismissal of his first petition.
Allowing the appeal,
HEID : l(a) Where a petition under Art. 226 is dismissed in limine without a speaking order, such a dismissal would not constitute a bar of res judicata
to a subsequent petition on the same cause of action.
When a
petition is
G
dismissed on the ground that the petitioner has an alternative remedy by way
of appeal or revision under a statute and on failure to get relief after pursuing
the remedy by way of appeal or revision, he moved the High Court, it would
be incorrect to dismiss the petition on the ground that the order made by the
re\'isional authority had the effect of merging the orieinal order with the order
of the revisional authority, and that the challenge on the fresh cause of actifln
to the order of the revisional authority would of neces~itv be a cha11enge to the
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original order also and that therefore the petition would be barred bv nrinciples
analogous to res judicata as the first order had become final.
[407C-E]
6-253SCI/79
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B
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ff
400
SUPREME COURT REPORTS
11979] 3 s.c.R.
Daryao & Ors. v. State of U.P. & Ors. [1962] 1 SCR 574; Virudhunagar
Steel Rolling Mills Ltd. v. The Govt. of Madras, [1968] 2 SCR 740; Tilokchand
Motichand & Ors. v. H. B. Munshi & Anr., [1969] 2 SCR 824; referred to.
In the instant case in the first wTit petition the appellant questioned the cor·
rcctness of the order of the Chief Settlement Commissioner dated 17th March,
1961 without claiming therein any compensation for the land a1:quired.
That
having been dismissed in linline he invoked the revisional jurisdiction under s. 33
of the Act.
When that petition was dismissed by the revisional authority he
preferred the second writ petition. What he prayed in the second petition was
a direction quashing the order dated 29th September, 1964 of the Joint Secretary
to the Government of India. The High Court was, therefore, in error in rejecting the second petition on the sole ground that the order of 17th March, 1961
merged into the order of 29th September, 1964 and in substance: the challenge
was to the order dated 17th March, 1961 which had become final. [40d A-Bl
(b) Secondly, if the claim for

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399
HOSHNAK SINGH
v.
UNION OF INDIA & ORS.
February 27, 1979
[P. N. SHINGHAL AND D. A. DESAI, JJ.]
Displaced Persons (Compensation & Rehabilitation) Act, 1954-Ss. 10' &
12-Scope of.
Res judicata-Principles analogous to res judicata when could be invoked.
A
B
A part of the land allotted to the appellant on quasi-permanent basis as a
displaced person from West Pakistan was acquired by the Government.
Wben
C
the question of payment of compensation in respect of the land acquired w:.1s
pending, the Displaced Persons (Compensation and Rehabilitation) Act, 1954
was passed which enabled holders of quasi-pe.rmanency rights to obtain perntanent settlement pursuant to which permanent settlement in respect of acquired
land was made in favour of the appellant.
AJJeging that the land allotted to the appellant was not allottable on a pcrrnaD
nent basis, the Chief Settlement Commissioner, by his order dated 17th March,
1961, cance11ed the allotment. The appellant's petition questioning the correctness of this decision was dismissed by the High Court in limine.
Thereupon the appellant preferred a petition under s. 33 of the Act to the
Joint Secretary to the Government of India, Rehabilitation Department, challenging the order of the Chief Settlement Commissioner.
By his order dated 29th
September, 1964 the Joint Secretary rejected the petition pointing out that the
cancellation of the appellant's permanent settlement rights in the land was in
accordance with law and that no interference was called for.
lbe appellant filed a writ petition in the High Court.
In rejecting
the
appellant's writ petition
impugning the
order dated
29th September, 1964 the High Court was of the view that it was barred by princinfes
E
analogous to res judicata because if that petition were
aI1owed, it would in
F
effect, amount to cancellation of the order dated the 17th March, 1961 which
beclame final as against the appellant on dismissal of his first petition.
Allowing the appeal,
HEID : l(a) Where a petition under Art. 226 is dismissed in limine without a speaking order, such a dismissal would not constitute a bar of res judicata
to a subsequent petition on the same cause of action.
When a
petition is
G
dismissed on the ground that the petitioner has an alternative remedy by way
of appeal or revision under a statute and on failure to get relief after pursuing
the remedy by way of appeal or revision, he moved the High Court, it would
be incorrect to dismiss the petition on the ground that the order made by the
re\'isional authority had the effect of merging the orieinal order with the order
of the revisional authority, and that the challenge on the fresh cause of actifln
to the order of the revisional authority would of neces~itv be a cha11enge to the
H
original order also and that therefore the petition would be barred bv nrinciples
analogous to res judicata as the first order had become final.
[407C-E]
6-253SCI/79
A
B
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F
G
ff
400
SUPREME COURT REPORTS
11979] 3 s.c.R.
Daryao & Ors. v. State of U.P. & Ors. [1962] 1 SCR 574; Virudhunagar
Steel Rolling Mills Ltd. v. The Govt. of Madras, [1968] 2 SCR 740; Tilokchand
Motichand & Ors. v. H. B. Munshi & Anr., [1969] 2 SCR 824; referred to.
In the instant case in the first wTit petition the appellant questioned the cor·
rcctness of the order of the Chief Settlement Commissioner dated 17th March,
1961 without claiming therein any compensation for the land a1:quired.
That
having been dismissed in linline he invoked the revisional jurisdiction under s. 33
of the Act.
When that petition was dismissed by the revisional authority he
preferred the second writ petition. What he prayed in the second petition was
a direction quashing the order dated 29th September, 1964 of the Joint Secretary
to the Government of India. The High Court was, therefore, in error in rejecting the second petition on the sole ground that the order of 17th March, 1961
merged into the order of 29th September, 1964 and in substance: the challenge
was to the order dated 17th March, 1961 which had become final. [40d A-Bl
(b) Secondly, if the claim for compensation was not raised in
the
first
petition but was specifically raised in the second, it would not be dismissed on
the ground that it \Vas barred by principles analogous to res judicata. f408 D]
2 (a) It has been well established by a long line of decisions of this Court
that after July 22, 1952 the Custodian had no authority to cancel or modify
quasi-permanent allotment, that the allottees of these rights could not "be dispossessed at the whim or caprice of the Custodian, that the quasi-permanent
rights were heritable and that the holders were entitled to permanent settlement
by issuance of sanad. Added to this was the fact that r. 14(6) of the Adminii;;-
tration of Evacuee Property (Central) Rules, 1950 as amended 1Ero1n July 22,
1952 restricted the power of the Custodian to resume or cancel quasi-permanent rights of the allottees except in the circumstances 'mentiont:d in the subrule and no material is placed on record to show that the Custodian had exercised hi• power under r. 14(6) of the Rules.
[41! D-E]
P. D. Sharma v. State Bank of India, [1968] 3 SCR 91; Amar Singh
v.
Custodian, Evacuee Property, Punjab, [1957] SCR 801;
State of Punjab
v.
Suraj Prakash Kapur, etc., [1962] 2 SCR 711; Joginder Singh & Ors. v. Deputy
Custodian General of Evacuee Property, [1962] 2 SCR 738 at 740; referred to.
(b) Nor again is there any material to show that the Custodian had the
power to cancel the allotment under the State Rules. It was not shown that
the State Government had framed any re-settlement scheme and that the allot·
ment was cancelled for that purpose.
[412 HJ
'3(a) Under the Evacuee Property Act, 1950 property which was declared
ns evacuee property vested in the Custodian and was aliotted
to
displaced
persons on a quasi-permanent basis. To obviate difficulties caused by continued unextinguislied title of the evacuee, the 1954 Act was passed, under s. 12(2)
of which the right, title and interest of any evacuee in the evacuee property
specified in the notification issued under the section stood extinguished and the
evncuee
property
would
vest
absolutely
in the
Central
Government.
Evacuee property acquired in this manner. formed part of the compensation
pool. Therefore, the appellant's property which was acquired in 1953, much
before the coming into force of th,e 1954 Act, could not have become part of
the compensation pool. [413 G-H]
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l!OSHNAK SINGH v. UNION (Desai, J.)
4 01
(b) Even assuming that though the property was taken over by the Central
A
Government in 1953 evacuee interest in it bad not been extinguished
till a
notification under s. 12 of the 1954 Act had been issued and that on the issue
of the notification it became part of the compensation pool, the consequence
envisaged by s.
10 of the 1954 Act must ensue. It is that so long as the
property remained vested in the Central Government it
shall
continue
in
possession of the person to whom it was allotted on the same conditions on
v.'hich he held th'e property immediately before the date of acquisition. [914
C-Dl
In the present case if the property had been taken over by the Central
Government much before the 1954 Act came into force neither s. 12 of tht:
1954 Act nor r. 49 would be attracted. If on the other hand the
evacuee
interest in the property came to be extinguished on the issue of a notification
under s. 12, s. 10 would be attracted and the appellant would be entitled to hold
the property till it continued to vest in the Central Government under s. 12.
In other \vords in either event he would be entitled to +c:ompensation.
[415
C-D]
(c) Nor again is it correct to say that it was a fresh n.Uotment under s. 10
of the 1954 Act. The land was allotted in 1949 and s_ 10 does not purport
to make a fresh a!lotment.
[415 Al
4(a) The whole of chapter VIII of the 1955 Rul'es (which indudes rr. 49
to 69) Would not apply because the land allotted was agricultural land and the
allotment was made under the notification of the Goven1ment of Punjab dated
8th July, 1949_ [416 CJ
(b) Once chapter VIII of the 1955 Rules and especially r. 49 v:·hich provides for payment of compensation in the form of land is out of the
way,
there is nothing in the Act which would debar a quasi-permanent allottee
asking for compensation in cash and the Government paying it. Moreover on
the former occasion the appellant was paid compensation in cash for a part
of the land acquired from him_
[417 D-E]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2082 of 1969.
Appeal by Special Leave from the Judgment and Order dated
14-2-1969 of the Punjab and Haryana High Court in L.P.A.
No_
103/68.
R. S. Narula, S. K. Mehta, T. S. Doabia, P. N. Puri and K. R_
Nagaraja, for the Appellant.
Girish Chandra for Respondent No. 1.
Hardev Singh and R. S. Sodhi for Respondents 2-5.
The Judgment of lhe Court was delivered by
DESAI, J.-This appeal by special leave arises from the dismissal of
the Civil Writ Petition filed by the present appellant by a learned single
Judge of the Punjab & Haryana High Court as also dismissal in fimine
of the Letters Patent appeal preferred by him.
Appellant is a displaced person from West Pakistan.
Ou his
migrntion to India he was allotted on quasi-permanent basis land
admeasuring 32t standard acres in village Daulatpur, Tehsil Pathankot,
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SUPREME COURT REPORTS
[1979] 3 s.c.R.
District Gurdaspur.
First respondent Union of India acquired land
admeasuring 1243 canals, 5 marlas which included 15 acres of !and
allotted to the appellant, for constructing a railway line.
According to
the appellant he was paid cash compensation for the same. First respondent further acquired in 1950 some land for construction National
Highway from Jammu to Jullundur and the acquis;tion included a portion of the land allotted to the appellant and along with other allottees
he was paid cash compensation for the same.
First respondent wanted
an open plot of land for setting up a housing colony for rehabilitating
some refugees from Mirpur (Kashmir) and in all it took possession of
land comprising 7.88 acres of non-evacuee land and 6.64 acres ot
evacuee land.
This acquisition included land admeasuring 1 standard
acre and 15! uuits of land allotted to the appellant.
Possession of the
land including the land of the appellant was admittedly taken over in
July 1953. Since then the appellant has been requesting the first respondent and other competent authorities for payment of compensation
for the same.
In the mean time after the introduction of the Dispfaced
Persons ·(Compensation and Rehabilitation) Act, 1954, ('1954 Act'
for short), allotment of land to appellant which was till then on quasi
permanent basis was converted into permanent basis.
As the appellant
was clamouring for compensation for the land taken from him, the
Chief Settlement Commissioner, Punjab, made an
order
on
17th
March 1961, Annexure 'C', whereby a reference made from the
Evacuee Property Department was accepted and the permanent settlement rights conferred on the appellant in respect of 1 standard acre and
15:!- units of land were cancelled on the ground that there already
existed houses over that portion of the land and the land was described
as ghair mumkin abadi and was not allottable on permanent settlement,
as agricultural land against the verified claim of the appellant.
The
appellant questioned the correctness of this order in
Writ Petition
No. 559/61 in the High Court which was dismissed in limine on 22nd
March 1961 and which has led to a contention on behalf of the respondents that the subsequent writ petition from which the present appeal
arises is barred by the principles analogous to res judicata.
After the
dismissal of the aforementioned writ petition the appellant approached
the Financial Commissioner (Rehabilitation Department), Chandigarh,
as per his representation Annexure 'D' dated 15th March 1963 requesting him to pay cash compensation for the land taken over by the first
respondent which till such taking over was held by the appellant on
quasi permanent allotment.
On receipt of this representation the
appellant was directed as per Annexure 'E' dated 25th April 1963 to
appear before the Financial Commissioner (Taxation) on 16th March
1963 at Chandigarh. The appellant accordingly appeared before the
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HOSH~AK SINGH \'. UNION (Desai, J.)
403
Financial Commissioner (Taxation) and represented his case lo1 cash
compensation. Subsequent thereto, Secretary to the Government of
Punjab, Rehabilitation Department, wrote to his counterpart in the
Central Government requesting the first respondent to concur with the
decision of the Punjab Government for payment of cash compensation
to the appellant adding that the land held by the appellant on quasi
permanent basis was taken over for the purpose of the first respondent
um! that as the area involved was less than 2 acres, the decisioa to pay
cash compensation in respect of such area, arrived at in the meeting held
between the officers of the Punjab Government and the Ministry of
Rehabilitation on 27th August, 1957 would govern the case. Presumably in response to this communication from the Punjab Government
the then Horne Minister wrote a demi official letter to the then Chief
Minister of Punjab in which it was admitted that the land allotted to the
appellant was in rural areas and a part of it was required later on for
public purpose and that in view df the decision arrived at the meeting
on 27'h August. 1957 the appellant would be entitled to
cash
compensation and requested the Chief
Minister
to
process
the
case accordingly.
Thus,
even
though
both the
Govcrmnents
agreed in their inter-departmental communications that the
appellant would be entitled to cash compensation, nothing tcngihle
came out with tl1e result that the appellant preferred a petition
under s. 33 of the 1954 Act challenging the order datcu 17th
March 1961 of the then Settlement Commissioner cancelling the permanent settlement rights conferred upon the appellant.
This appli-
~ation was rejected by the Joint Secretary to the Government of India
observing that the cancellation of the permanent settlement right, was
in accordance with law and no interference was called for.
Thereafter
the appellant filed the writ petition from which the present appeal arises.
After the writ petition was filed and rule nisi was issued, a return
was filed as per the affidavit of one R. C. Aggarwal, Under Secretary to
Goverrnnent of Punjab, Rehabilitation Department, presumably on
behalf of all the respondents which undoubtedly amongst others, include
the Union of India, the first respondent, and the State of Punj~b. the
second respondent. It must be specifically mentioned that tl;e Union
of India did not file any separate return and accepted the return filed
by and on behalf of the State of Punjab and other officers of the Punjab
Government. There are certain averments in this return which
must
be noticed.
Appellant is a displaced person and he was allotted 32t
standard acres of land on quasi permanent basis is in fact admitkd. It
is equally admitted that the land which was taken over for setting up a
colony for rehabilitation o[ some families from Kashmir included one
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'SUPREME COURT REPORTS
[1979] 3 s.c.R.
standard acre and 15! units of land which was till then held by the
appellant and that the land was taken over in July 1953.
It was contended that when land is allotted on quasi permanent basis, the allotment can be cancelled and the land can be resumed and that when such
a resumption takes place the allottee is only entitled to compensation
in the form of land and not in cash. It was also contended that the
cancellation of the permanent settlement rights was
just and legal
because the conferment was the result of a fraud between the appellant
and some officers of the Punjab Government and proceeded on the
erroneous assumption that the land was used as agricultural land though
in fact it can be appropriately described as ghair mumkin abadi. The
manner in which the preliminary objection was raised at the hearing of
the writ petition that in view of the dismissal of the earlier petition
bearing on the same subject the present petition is barred by the principles of res judicata was not in terms taken up in the return filed on
behalf of the respondents. The High Court, however, appears to have
permitted the respondents to raise that contention.
The learned single Judge held that the effect of dismissal of the
earlier petition filed by the present appellant was that the order dated
17th March, 1961 by which permanent settlement rights conferred or
the appellant were cancelled became final and if the present petition
is allowed the only thing the court would have to do would be to cancel
the order dated 17th March, 1961 which has become final against the
appellant and, therefore, the petition is barred by the principles a'nalogous to res judicata.
Mr. Girish Chandra for the first respondent and Mr. Hardev Singh
for the remaining respondents urged that the appeal must fail for the
same reason for which the earlier petition of the appellant was dismissed inasmuch as the cause of action for both the petitions being
the same, the subsequent petition would be barred by the principles
analogous to res judicata.
In the earlier petition the appellant questioned the correctness of
the decision dared 17th March 1961 by which permanent settlement
6
rights conferred on the appellant for the land held by him on quasi
permanent basis, including the land admeasnring 1 standard acre and
!St units taken over by the first respondent in July 1953,
and the appellant in the earlier petition did not claim any cash
compensation for the land taken over by the first respondent. In the
present p~tition the appellant seeks a direction for quashing the order
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of the Joint Secretary, Rehabilitation Department, Government of India
dated 29th September, 1964 rejecting the representation made to the
Central Government presumably nuder s. 33 of the 1954 Act question-
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HOSHNAK SINGH v. UNION (Desai, J.)
405
ing the correctness of the order dated 17th March 1961. Under s. 33
the Central Government has power to call for the rocord of any proceeding under the Act and to pass such order in relation thereto as in
its opinion the circumstances of the case require and as is not inconsistent with any of the provisio'm; contained in the Act or the rules
made thereunder.
Broadly stated the powe.r of revision is conferred
on the Central Go\'ornment under s. 33. Appellant invoked this revisional jurisdiction under s. 33 against the order dated 17th March 1961
which he challenged in the first petitio'n.
After the dismissal of the
first petition he preferred revision application under s. 33 and when
this revision petition was dismissed he preferred the second petition.
'The High Court was of the view that the ord·~r dated 17th___March 1961
merged into the order dated 29th September 1964 passed by the Central
Government while dismissing the revision applicatio'n of the appellant
and, therefore, if now the petition is allowed it would have the effect
of setting aside the order dated 17th March 1961 which in view of the
dismissal of th~ earlier petition of the appellant had become final. The
High Court is clearly in error in reaching this conclusion.
The earlier petition was dismissed by a 'non-speaking, one word,
order 'dismissed'. The High Court may as well dismiss the petition
in limine on the ground of delay or !aches or on the ground of alternative remedy. The second petition after
pursuing the
alternative
remedy would not be barred by the principles analogous to res judicata.
More often a petition under Article 226 is dismissed on the ground
that b~fore invoking the extraordinary jurisdiction of the High Court,
if the potitioner has an alternative remedy under a statute under which
the right is claimed by the petitioner, the Court expects the pditioner
to exhaust the remedy and in such a situation the petition is dismissed
in limine.
If after preforring an appeal or revision under the statute under
which the right is claimed by the petitioner a petition under Article
226 is filed irrespoctive of the fact that the revision· or appeal was
dismissed and th~ original order which was challenged in the first petition had merged into the appellate or revisional order, no·netheless th·o
second petition in the circumstances would not be barred by the principles analogous to res judicata b<canse the cause of action is entirely
different and the merger of the order cannot stand i·n the way of the
petitioner invoking the jurisdiction of the High Court under Article
226.
In the leading case of Daryao & Ors. v. State df U.P. & Ors.(') this
Court in venns said that if the petition filed in the High Court under
(!) [1962] I SCR 574.
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SUPREME COURT REPORTS
[1979] 3 s.c.R.
Article 226 is dismissed not on the merits but because of the laches of
the party applyihg for the writ or becaus•.; it is held that the party had
an alternative remedy available to it th>"n the dismissal of the writ
petition would not constitute a bar to the subsequent. petition under
Art. 32 exc·.opt in cases where the facts found by the High Court may
th•.omselves be relevant even under Art. 32. If a writ petition is dismissed in limine and an order is pronounced in that behalf whether or
not the dismissal would constitute a bar would depend upon the nature
of the order. If the order is on the merits it would ho a bar; if the
order says that the dismissal was for the reason that the petitioner was
guil~y of !aches or that he had an alternativ•e remedy it would· not lx• a
bar except in cases indicated ii;i the judgment. Then comes an obserrntion which may better be quoted :
"It the petition is dismissed in limine without passing a
speaking order then such dismissal cannot be treated as creating a bar of res judicata. It is true that, prima facie, dismissal in limine even without passing a speaking order in that
behalf may strongly suggest that the Court took the• view that
there was no substance in the petition at all, but in the absence
of a speaking order it would not be easy to decide what factors weighed in the mind of the Court and that makes it difficult and uhsafe to hold that such a summary dismissal is a
dismissal on merits and as such constitutes a bar of res judicata against a similar petition filed under Art. 32".
In Virudhunagar Steel Rolling Mills Ltd. v. The Government of
Madras,( 1) rejecting the contention that if the petition under Art. 226 is
dismissed without issuing a notice to the other side though by a speaking order such a dismissal would not bar the subsequent petition for same
cause of action or for the same relief, it was observed that this Court in
Daryao's case(') did not mean to lay down that if the petition is dismissed in limine without notice to the opposite side it would not bar a subsequent petition. This Court only ruled that if the petition is dismissed.
in limine but with a speaking order which order itself indicates that the
petition was dismissed on merits, the absence of notice to other side by
itself would not be sufficient to negative the plea of res judicata in 2
subsequent petition in respect of the same cause of action.
However,
while negativing the contention on the facts of the case this Court reaffirmed that if the petition is dismissed in limine without passing a
speaking order than such a dismissal cannot be treated as creating a
bar of res judicata. Similarly in Tilokchand Motichand & Ors. v. H. B.
(I) [1968] 2 SCR 740.
(2) [1962] 1.S.C.R. 574.
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HOSHNAK SINGH v. UNION (Desai, J.)
407
Munshi & Anr.,(') a majority of the Judges affirmed the
ratio in
Daryao's case (supra) that if a petition under Art. 226 is dismissed not
on merits but because an alternative remedy was available to the petitioner or that the petition was dismissed in limine without a speaking
-0rder such dismissal is not a bar to the subsequent petition under Art.
32. It must follow as a necessary corollary that a subsequent petition
under Art. 226 would not be barred by the principles analogous to res
judicata. Roraffirming the view taken on this point in Daryao'.1 oase, in
P. D. Sharma v. State Bank of India(') the preliminary objection about
bar of res judicata was negatived. lt is, therefore, incontrovertible tha\
whe.re 1 petition under Art .. 226 is dismissed "' limine without a ;peaking
order ;ach a dismissal would not constitute a _bar" of res judicata to a
subsequent petition on the same cause of action, more so, when on the
facts in this case it appears that the petition was dismissed presumably
because the petitioner had an alternative remedy by way of a revision
petition under s. 33 of the 1954 Act which remedy he availed of and
after failure to get the relief he moved the High Court again for the
relief. It would be incorrect in such a situation to dismiss the petition
on the ground that the order made by the revisional authority dismissing the revision petition had the effect of merging the original order
against which the revision was preferred with the order made by the
revisional authority and, therefore, the challenge on the first cause e>[
action to the order made by the revisional authority would of necessity
_be a challenge to the original ci~der also and the petition would be barred by the principles analogous to res judicata as the rest order had
become final.
The High Court was clearly in error in dismissing the
petition on this short ground.
There is yet another fallacy in the approach of the High
Court
while dismissing the petition as being barred by the principles analogous to res judicata because the second relief claimed by the appellant
in the second petition was never claimed in the first petition and is
an independent '\nd separate relief which the High Court was invited
to grant if the appellant was otherwise entitled to it.
The appellant,
by prayer (b) of the petition, sought a direction that the respondents
be ordered to pay cash compensation to the appellant for the area of
land which had been takeu over by the respondents. It is nobody's
case that such a prayer was ever made in the first petition. In the
first petition the grievance of the appellant was that the order dated
17th March, 1961 made by the Chief Settlement Commissioner cancelling the permanent settlement rights conferred on the appellant in respect of his land was illegal and invalid.
There was no claim for
(I) [1969] 2 SCR 824.
(2) (1%8] 3 SCR 91.
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SUPREME COURT REPORTS
[1979] 3 s.c.J:.
compensation. A claim for
compensation
was
being
separately
pursued by the apellant and he did not invoke the jurisdiction of the
High Court praying for a direction to pay him compensation. In. the
second petition from which this appeal arises there is a specific prayer
for compen.i;ation and Mr. Narula, learned counsel for the appellant,
stated that the appellant is not interested in the first prayer questioning
the validity of the order made by the Joint Secretary to Government
of India dated 29th September 1964 affirming the order dated 17th
March, 1961 which was the subject-matter of the first petition. Now,
if claim for compensation was not raised in the first petition and if it
is specifically raised in the second petition on the allegation that as
the land of the appellant has been taken over by the Government for
its own use, if compensation is not paid it would be deprivation of
property without compensation and would be denial of fundamenta I
right to hold property, it is unthinkable that the present petition for
this particular relief can ever be dismissed in the facts of this case on
the ground that it is barred by the principles analogous to res judicata.
For this additional reason the order of the High Court is unsustain··
able.
And now to the facts of the case.
The appellant is admittedly a
displaced person to whom 32t standard acres of land was allotted and
the allotment admittedly was on quasi permanent basis. It is again
an admitted position that in July 1953 the first respondent, Union of
India, took possession of 1 standard acre and 15t units of land from
the land allotted to the appellant on quasi permanent basis for its use,.
viz., for setting up a colony.
Appellant contends that he must be paid
compensation in cash for the land taken over from him. Respondents
en the other hand contend that an allotment of land on quasi permanent basis could be resumed by the first respondent when the land was.
required for its own use and on such resumption the appellant would
only be entitled to allotment of an equivalent area of land but in no
case the appellant would be entitled to compensation in cash.
This necessitates examination as to what is the interest of the
appellant in the land allotted to him on quasi permanent basis and
when and in what circumstances and for what purpose .it can
be
resumed or allotment cancelled and if so resumed, to what relief the
appellant is entitled to.
There has been a flood of enactments on the taking over and
administration of evacuee property as also compensation payable to
displaced persons.
This Court in Amar Singh v. Custodian, Evacuee
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HOSHNAK SINGH v. UNION (Desai, !.)
409
Property, Punjab,(') exhaustively and stage by stage examined the
measures taken by the Central and State Governments first for rehabilitating displaced persons, taking over of properties left by those who
migrated to Pakistan, its distribution and allotment to displaced persons
who came over to India on partition, and ultimately extinguisbment
of the evacuee interest in such properties.
To recapitulate them here
would be merely adding to the length of this judgment.
We would,
therefore, only take note of the conclusion reached in Amar Singh's
case (supra) with regard to the interest of the displaced persons to
whom agricultural land was allotted on quasi permanent basis up to
July 22, 1952. Says the Court at page 823 :
" ( 1) The allottee is entitled to right of use and occupation of property until such time as
the
property
remains vested in the Custodian;
( 2) The benefit of s.uch right will enurc to bis heirs and
successors;
( 3) His enjoyment of the property is on the basis of paying land revenue thereupon and cesses for the time
being.
Additional rent may be fixed thereupon by
the Custodian. If and when he does so, the allottee
is bound to pay the same;
( 4) He is entitled to quiet and undisturbed enjoyment of
the property during that period;
(5) He is entitled to make improvements on the land with
the assent of the Custodian and is entitled to compensation in the manner provided m the Punjab
Tenancy Act;
( 6) He is entitled to exchange the whole or any part of
the land for other evacuee land with the consent of
the Custodian;
(7) He is e.ntitled to lease the land for a
period
not
exceeding three years without the permission of the
Custodian and for longer period with bis consent.
But he is not entitled to transfer his rights by way
of sale, gift, will, mortgage or other private contract;
(8) His rights in the allotment are subject to the fairly
extensive powers of cancellation under the Act and
rules as then in force prior to July 22, 1952. on
(1) [1957] SCR 801.
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varied ad1ninistrative considerations and actions such
as the following : .................. "
Undoubtedly this Court held that these quasi permanent rights in
land would not be property within the meaning of Article 31 of the
Constitution and, therefore, if deprivation of property is complained
of a petition under Art. 32 would not lie.
However, after concluding in this manner this Court summed up the position with regard to
the interest of quasi permanent holder in his holding as under :
"In holding that quasi-permanent allotment does not
carry with it a fundamental right to
property under
the
Constitution we are not to be supposed
as
denying
or
weakening the scope of the rights of the
allottee.
Tliese
rights as recognised in the statutory rules arc important and
constitute the essential basis of a sat ;sfactory rehabilitation
and settlement of displaced land-holders.
Until such time
as these land-holders obtain sanads to the lands, these rights
are entitled to the zealous protection of
the
constituted
authorities according to administrative rules and instructions
binding on them, and of the courts by appropriate proceedings where there is usurpation of jurisdiction or abuse of
exercise of statutory powers".
After re-affirming the position of the quasi permanent
allottees
as
herein quoted, this Court in State of Punjab v. Suraj Prakash Kapur,
etc., ( 1) held that after July 22, 1952, the Custodian ceases to have any
authority to cancel or modify quasi permanent allotment.
This enunciation of the interest of the quasi permanent allottees in the land
allotted to them should dispel any doubt about their entrenched interest
in the land.
Nor could it be said that those allottees were at ':lie
mercy of the Custodian and can be dispossessed at his whim or caprice.
These were heritable rights and the holders were entitled in due course.
to permanent settlement by issuance of sanads.
But even before this
situation was reached a fundamental change occurred in the posit ion
of the Custodian vis-a-vis the quasi permanent :)llottces
about
'he
right of the former to cancel allotment and resume land. In exercise
of the_ powers conferred by s. 56 of the Administration o[ Evacuee
Property Act, 1950, the Central Government enacted what aro styled
as Administration of Evacuee Property (Central) Rules, 1950. Rule
14 recites the power of the Custodian to vary or cancel the lease or
allotment under certain circumstances mentioned therein.
Initially
sub-rule ,(6) was added to this rule and later on it was modified where-
(!} [1962] 2 SCR 7tl.
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HOSHNAK SINGH v. UNION (Desai, !.)
411
by the power to cancel any allotment or resume evacuee property allotted on quasi permanent basis was circumscribed and was available in
the circumstances mentioned in amended sub-rule (6). The amendment effective from 22nd July 1952 had undoubtedly the effect of
modifying and thereby restricting the power of resumption or cancellation vested in the Custodian in respect of quasi permanent allottees
and the power was confined within very narrow limits. Therefore,
subsequent to July 22, 1952, the Custodian of Evacuee Property would
have the power to cancel an allotment only upon a ground which falls
within the exceptions enumerated in sub-rule (6) (vide Joginder Sillgh
& Ors. v. Deputy Custodian General of Evacuee Property).(') We need
not examine the circumstances in which resumption or cancellation
can be ordered under the amended sub-rule (6) of rule 14 because it
is not the case of the respondents that the land was resumed in exercise
of the power conferred by rule 14 and in one or other of the circumstances mentioned in sub-rule (6) thereof.
Suffice it to say that after
July 22, 1952, the Custodian had no authority to cancel quasi permanent allotment and resume land except in the
circumstances
and
contingencies mentioned in sub-rule (6) of rule 14 and that having
not been done, it cannot be contended on behalf of the respondents
that the land in this case allotted on quasi permanent basis to appellant
was resumed by the Custodian.
Two fact situations material and
necessary for raising this contention are absent in this case. There is
no material placed on record, including the counter-affidavit, which
would show that the Custodian resumed the land of the appellant in
exercise of the power conferred by rule 14 and in one of the circumstances mentioned in rnb-rule ( 6). And secondly, no such order of
Custodian 1s forth-coming even after time was given to produce the
file.
Mr. Hardev Singh, however, contended that even though sub-rule
• (") of rule 14 as amended up to July 22, 1952 would not "enable the
Custodian to resume land or cancel allotment granted on quasi pennanent basis except in the circumstances mentioned in sub-rule ( 6), yet
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Punjab State Government on 29th August, 1951. It was
contended
that in exercise of the powers delegated by the Central Government
under sub-s. (1) of s. 55 of the Administration of Evacuee Property
Act, 1950, to make rules under clause (i) of sub-section (2) of s. 56,
the Punjab Government made the rule, the relevant portion of which
reads as under :
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(l) (1962] 2 SCR 738 at 740.
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"The Custodian shall be competent to cancel or terminate any lease or allotment or vary the terms of any lease,
allotment or agreement and evict the lessee allottee in any
one of the following circumstances;
(h) that it is necessary or expedient to cancel or vary
the terms of a lease/allotment for the implementation
of
resettlement schemes-and/or-rules framed by
the
State
Government or for such
distribution
amongst
displaced
persons as appears to the Custodian to be equitable and proper".
Mr. Hardev Singh contended that presumably the Custodian at the
State level cancelled the allotment in respect of the land taken over
for resettlement and rehabilitation of refugees from Kashmir and ci1at
this cancellation and resumption must be for implementation of resettlement scheme or under the rules framed for
such resettlement
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schemes by the State Government and, therefore, the resumption was
one under the Administration of Evacuee Property Act and it was not
a case of either acquisition or taking over of the land of the petitioner.
There is no material placed before us to support this submission.
In the counter-affidavit on behalf of the respondents not one word has
E
been stated that the Custodian at State level cancelled the allotment
and resumed the land.
The stand taken in the return filed
m the
High Court is that evacuee area measuring 7.88 acres was taker. over
by the Government for construction and development of a colony for
rehabilitation of 300 Kashmiri displaced persons and that such land
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included an area of 1 standard acre and 15! units of the land allot:ed
to the petitioner. It was further stated that this land of the appellant
stood acquired under s. 12 of the Displaced Persons (Compensation
& Rehabilitation) Act, 1954.
There is not the slightest suggestion that
the Custodian in exercise of the power under the aforementioned rule ·
cancelled the allotment in favour of the appellant and resumed the
land. If snch is not the case, the power claimed under the rule can.not
help the respondents.
Assuming that there was power to cancel aJlotment and resume land under the State Rules, it must be shown that the
State Government had framed a resettlement scheme and for the purpose of the scheme the allotment was cancelled and land was resumed.
The fact pleaded is to the contrary that the Union of India took possession of the land for setting up a colony.
This also becomes clear fr~m
the letter written by the Secretary to Government of Punjab, Rehabilitation Department, Annexure 'F wherein it was in terms stated that
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HOSHNAK SINGH v.