# SHANKARA CO-OP HOUSING SOCIETY LTD v. M. PRABHAKAR & ORS

- **Citation:** [2011] 7 S.C.R. 468
- **Court:** Supreme Court of India
- **Decided:** 2011-05-05
- **Case number:** Civil Appeal No. 4099 of 2000
- **Bench:** D.K. Jain, H.L. Datiu
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shankara-co-op-housing-society-ltd-v-m-prabhakar-ors-27800
- **Pages:** 80

## Headnote

Displaced Persons (Compensation and Rehabilitation)
Act, 1954:
s. 12 - Property notified uls. 7 of the Evacuee Property
Act -
Subsequently issuance of Notification uls. 12 -
Acquisition of evacuee property for rehabilitation of displaced
persons - Effect of - Held: Notification issued uls . . 7 of the
0 Evacuee Property Act declaring the property to be evacuee
property was valid in law - In view of the Notification issued
by the Central Government uls. 12, the property vested in the
Central Government - Thus, the property lost the status of
evacuee property - Administration of Evacuee Property Act,
E 1950- s. 7.
s. 24 -
Power of revision of Chief Settlement
Commissioner under - Scope of - Held: Chief Settlement
Commissioner can revise the order if in his opinion the orders
passed by the officers named in the Section are either illegal
F or improper - On facts, the Chief Settlement Commissioner
invoked his revisional powers at the request of the allotteesl
displaced persons to revise the proceedings and the order
passed by the Collector-cum-Deputy Custodian under the
provisions of the Evacuee Property Act- Therefore, the orders
G passed by the Chief Settlement Commissioner is without
jurisdiction and non-est in law - Administration of Evacuee
Property Act, 1950.
Constitution of India, 1950:
H
468
SHANKARA CO-OP HOUSING SOCIETY LTD. v. M. 469
PRABHAKAR & ORS.
Article 226 - Belated writ petition challenging the
A
Notification issued under the Evacuee Property Act, declaring
· certain properties as evacuee property - Maintainability of -
Held: High Court ought not to have entertained and granted
relief to the writ petitioners since there was inordinate and
unexplained delay in approaching the court/authorities at B
every stage for redressal of their grievance - They claimed
wrong reliefs/incomplete reliefs before the Authorities - They
questioned the correctness of the said Notification by way of
filing an amendment application - Also in the earlier writ
petition challenging the Notification, the finding regarding c
delay and failure to avail alternate remedy had attained
finality - More so, during the period of delay, interest accrued
in favour of the third party - Delay//aches.
Article 226 - Writ petition filed by original owner of land
challenging the Notification issued u/s. 7 of the Evacuee
D
Property Act declaring certain properties as evacuee
properties - Petition dismissed by the High Court since the
claim was highly belated and there was a failure to avail the
alternate remedy provided under the Act - Said order
attaining finality - Subsequently writ petition filed re-agitating
E
the said issue which had attained finality and the Division
Bench of the High Court entertained the same - Held: The
judgment and order of the High Court having attained finality
was binding on the authorities under the Evacuee Property
Act - Division Bench of the High Court could not have
F
permitted the writ petitioners to re-agitate the correctness or
otherwise of the Notification issued uls. 7 of the Evacuee
Property Act in the subsequent writ petition - A subsequent
writ petition was not maintainable in respect of an issue
concluded between the parties in the earlier writ petition -
G
Administration of Evacuee Property Act, 1950.
Articles 226 and 227 - High Court while entertaining writ
petition filed under Article 226 and 227 wherein the
proceedings uls. 7 of the Evacuee Property Act was
H
470
SUPREME COURT REPORTS
[2011] 7 S.C.R.
A questioned, going into disputed questions of facts -
Maintainability of - Held: Writ petition is maintainable - 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
B the custodian under the Act - Any person aggrieved by the
findings of the custodian can avail the other remedies
provicied under the Act - Thus, the finding and the conclusion
reached by the Authorities under t

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A
B
c
[2011] 7 S.C.R. 468
SHANKARA CO-OP HOUSING SOCIETY LTD.
v.
M. PRABHAKAR & ORS.
(Civil Appeal No. 4099 of 2000)
MAY 05, 2011
[D.K. JAIN AND H.L. DATIU, JJ.]
Displaced Persons (Compensation and Rehabilitation)
Act, 1954:
s. 12 - Property notified uls. 7 of the Evacuee Property
Act -
Subsequently issuance of Notification uls. 12 -
Acquisition of evacuee property for rehabilitation of displaced
persons - Effect of - Held: Notification issued uls . . 7 of the
0 Evacuee Property Act declaring the property to be evacuee
property was valid in law - In view of the Notification issued
by the Central Government uls. 12, the property vested in the
Central Government - Thus, the property lost the status of
evacuee property - Administration of Evacuee Property Act,
E 1950- s. 7.
s. 24 -
Power of revision of Chief Settlement
Commissioner under - Scope of - Held: Chief Settlement
Commissioner can revise the order if in his opinion the orders
passed by the officers named in the Section are either illegal
F or improper - On facts, the Chief Settlement Commissioner
invoked his revisional powers at the request of the allotteesl
displaced persons to revise the proceedings and the order
passed by the Collector-cum-Deputy Custodian under the
provisions of the Evacuee Property Act- Therefore, the orders
G passed by the Chief Settlement Commissioner is without
jurisdiction and non-est in law - Administration of Evacuee
Property Act, 1950.
Constitution of India, 1950:
H
468
SHANKARA CO-OP HOUSING SOCIETY LTD. v. M. 469
PRABHAKAR & ORS.
Article 226 - Belated writ petition challenging the
A
Notification issued under the Evacuee Property Act, declaring
· certain properties as evacuee property - Maintainability of -
Held: High Court ought not to have entertained and granted
relief to the writ petitioners since there was inordinate and
unexplained delay in approaching the court/authorities at B
every stage for redressal of their grievance - They claimed
wrong reliefs/incomplete reliefs before the Authorities - They
questioned the correctness of the said Notification by way of
filing an amendment application - Also in the earlier writ
petition challenging the Notification, the finding regarding c
delay and failure to avail alternate remedy had attained
finality - More so, during the period of delay, interest accrued
in favour of the third party - Delay//aches.
Article 226 - Writ petition filed by original owner of land
challenging the Notification issued u/s. 7 of the Evacuee
D
Property Act declaring certain properties as evacuee
properties - Petition dismissed by the High Court since the
claim was highly belated and there was a failure to avail the
alternate remedy provided under the Act - Said order
attaining finality - Subsequently writ petition filed re-agitating
E
the said issue which had attained finality and the Division
Bench of the High Court entertained the same - Held: The
judgment and order of the High Court having attained finality
was binding on the authorities under the Evacuee Property
Act - Division Bench of the High Court could not have
F
permitted the writ petitioners to re-agitate the correctness or
otherwise of the Notification issued uls. 7 of the Evacuee
Property Act in the subsequent writ petition - A subsequent
writ petition was not maintainable in respect of an issue
concluded between the parties in the earlier writ petition -
G
Administration of Evacuee Property Act, 1950.
Articles 226 and 227 - High Court while entertaining writ
petition filed under Article 226 and 227 wherein the
proceedings uls. 7 of the Evacuee Property Act was
H
470
SUPREME COURT REPORTS
[2011] 7 S.C.R.
A questioned, going into disputed questions of facts -
Maintainability of - Held: Writ petition is maintainable - 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
B the custodian under the Act - Any person aggrieved by the
findings of the custodian can avail the other remedies
provicied under the Act - Thus, the finding and the conclusion
reached by the Authorities under the Act in an appropriate
case can be questioned in a petition filed under Article 226
c - Administration of Evacuee Property Act, 1950.
Res judicata - Principles of constructive res judicata -
Applicability of - When ground open to be raised was not
raised in the earlier writ petition whereas in a subsequent writ
petition, the High Court permitted the petitioners to raise the
D said ground - Justification of- Held: Not justified - The same
is hit by the principles analogous to constructive res judicata
- Doctrines/Principles.
Respondents are the legal representatives of 'M' who
E was owner of certain lands. One 'R' obtained a money
decree against 'M' and allegedly in the execution
proceedings, 'R' purchased the lands belonging to 'M' in
an auction. Thereafter, his name was recorded in the
Revenue Record as owner of the said lands. In the year
F 1940, 'R' expired and his legal representatives migrated
to Pakistan after partition. In the year 1951, the Deputy
Custodian and Collector issued notice to the legal heirs
of 'R' under sub-Section (1) of Section 7 of the
Administration of Evacuee Property Act, 1950. Public
G notices were issued as also the ancestors of the
contesting respondents were give!"' notices. However, no
objections were filed to the notices. The Deputy
Custodian and Collector issued a Notification dated
11.12.1952 declaring the said property as an Evacuee
Property under Section 7 of the Evacuee Property Act.
H
SHANKARA CO-OP HOUSING SOCIETY LTD. v. M. 471
PRABHAKAR & ORS.
The same was published and the name of the Collector/ A
Custodian was entered in the Revenue Records.
Thereafter, the Central Government acquired the said
lands by issuing Notification under Section 12 of the
Displaced Persons Act for the rehabilitation of the
persons who were displaced during the partition. The
B
said declaration of the lands as evacuee prdperty and the
subsequent acquisition by the Central Government was
not challenged upto the year 1955. Thereafter, the
ancestors of the respondents made only repeated
representations before the authorities.
c
In the year 1966, Tahsildar proposed to auction the
disputed lands on yearly lease basis. Aggrieved, 'M'-
ancestor of the respondents filed Writ Petition No. 1051
.of 1966 inter-alia, seeking a writ of prohibition or direction
restraining the Tahsildar from auctioning the said lands
D
and to direct the authorities to decide the representation
filed by them. The Regional Settlement Commissioner/
Custodian of Evacuee property averred that the notice as
required had been issued to all the interested parties. The
High Court dismissed the writ petition on the ground of E
delay/laches; and the failure to avail alternate remedy
provided under the Evacuee Property Act. During the
pendency of the writ petition, a portion of the land was
allotted to 'EB' and she was impleaded as one of the
respondents in the writ petition. Some of the respondents
F
also filed a revision petition under Section 27 of the
Evacuee Property Act before the Deputy Custodian
General to revise the Notification dated 11.12.1952. In the
year 1968, some portion of the lands was allotted to 'G'
and 'J' as also 'MD' and their names were recorded in the
G
revenue records. Thereafter, by order dated 25.09.1970
the revision petition was allowed and the case was
remanded to the Custodian-cum-Collector for redetermination of the evacuee nature of the lands. On
remand, the Collector-cum-Deputy Custodian of Evacuee
H
472
SUPREME COURT REPORTS
(2011] 7 S.C.R.
A Property by order dated 28.05.1979 held that since there
was no evidence to show that 'R' came to be the owner
of the land in pursuance of an auction by the court in
execution of the money decree, thus, 'M' and the other
contesting respondents continue to be the owners of the
B disputed lands. Aggrieved, the allottees filed a· revision
petition before the Chief Settlement Commissioner under
the Displaced Persons Act, who by order dated
11.05.1983 set aside the order of the Collector-cumDeputy Custodian dated 28.05.1979 and declared that the
c property belonged to late 'R' and that by virtue of the
Notification dated 11.12.1952, the disputed lands are
evacuee property. Meanwhile, in view of the pendency of
the proceedings, the Tahsildar refused to give
possession of the disputed lands to the allottees.
D
The contesting respondents again filed a revision ·
petition under Section 33 of the Displaced Persons Act
and the same was dismissed. The contesting
respondents then filed Writ Petition No. 7517of1983 inter
alia, requesting the court to direct the authorities under
E the Displaced. Persons Act to initiate suo-moto
proceedings to determine the claim of ownership of the
disputed lands and the same was also dismissed. The
contesting respondents filed another Writ Petition No.
17722 of 1990 inter alia requesting the High Court to issue
F a writ or order directing the Commissioner, Survey
Settlement and Land Records/Chief Settlement
Commissioner, Evacu.ee Property to conduct an enquiry
into questions of title of disputed lands and correctness
of the declaration of the said property as evacuee
G property. Subsequently, the contesting respondents filed
an application to amend the prayer in the writ petition. It
was to include a prayer to quash the Notification dated
11.12.1952 and the same was allowed. The appellants
also filed an application for impleadment as a party to the
H proceeding and the same was allowed. The Division
SHANKARA CO-OP HOUSING SOCIETY LTD. v. M. 473
PRABHAKAR & ORS.
Bench of the High Court allowed the writ petition by
A
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. Therefore, the
instant appeals were filed.
B
Allowing the appeals, the Court
HELD: 1. (i)The High Court ought not to have
entertained and granted relief to the writ petitioner/
contesting respondents, since there was inordinate and
C
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 o
High Court ought riot to have permitted the writ
petitioners/contesting respondents 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
E
· in respect of an issue c9ncluded between the parties in
the earlier writ petition.
(iv) In view of the specific bar under Section 46 of the
Evacuee Property Act, the writ petition filed by the
F
contesting respondents before the High Court was
maintainable.
(v) Since exception is taken to the orders passed by
the Collector-cum-Deputy Custodian and the judgment G
and order passed by the High Court in W.P. No. 17222 of
1990, the 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 Government under Section 12 of the
H
474
SUPREME COURT REPORTS
[201_1] 7 S.C.R.
A Displaced Persons Act ceases to be evacuee property
and becomes the property of the Central Government.
(vi) In view of the clear language employed in Section
24 of the Act, the Chief Settlement Commissioner had no
8 jurisdiction to revise the order passed by the Collectorcum-Deputy Custodian under the Evacuee Property Act.
Thus, the judgment and order passed by the High Court
in W.P. 17222 of 1990 dated 27.04.2000 is set aside.
[Paras 111 and 112) [546-E-H; 547-A-G]
C Delay and Laches:
2.1. In the instant case, the respondents in the writ
petition had raised a specific plea of delay, as a bar to
grant relief to the petitioners. It was perhaps necessary
0 for the Court to have specifically dealt with this issue. 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
E 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
F 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. [Para 60)
[516-B-D]
G
2.2. There was 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 Evacw~e Property Act. For the delay from 1952
H to 1955, the contesting respondents only submitted that
SHANKARA CO-OP HOUSING SOCIETY LTD. v. M.
475
PRABHAKAR & ORS.
they were not aware of the Notification issued under the
A
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
contended that they were in possession of the property
B
and they were making representations before the
authorities under the Evacuee Property Act for redressal
of their grievance. As regards 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 c
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 0
Government to issue appropriate directions. Thus, at
every stage, there was inordinate delay in approaching
the authorities for redressal of their grievance. 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 the contesting
respondents that the petitioners in their pleadings before
E
F
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. The power of the
High Court under Article 226 of the Constitution to issue
G
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
H
476
SUPREME COURT REPORTS
(2011) 7 S.C.R.
A discretion in favour of the petitioners therein. The
unexplained delay on the part of 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
B 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. Delay defeats equity and that the discretionary
c relief of condonation can be had, provided one has not
given by his conduct, given a go by to his rights'. [Para
61] [516-E-H; 517-A-H; 518-A-B]
Lindsay Petroleum Company vs. Prosper Armstrong
Hurd etc (1874)5 PC 221; Moon Mills Ltd. vs. Industrial
D Courts AIR 1967 SC 1450; Maharashtra State Road
Transport Corporation vs. Ba/want Regular Motor Service AIR
1969 SC 329: 1969 SCR 808; Amrit La/Berry vs. CCE
(1975) 4 SCC 714: 1975 (2) SCR 960; State of Maharashtra
vs. Digambar(1995) 4 SCC 683: 1995 (1) Suppl. SCR 492;
E Shiv Dass vs. Union of India (2007) 9 SCC 274: 2007 (1)
SCR 1127; City and Industrial Development Corporation vs.
Dosu Aardeshir Bhinandiwala and Ors. (2009) 1 SCC 168:
2009 (1) SCR 196; State of M.P. and Ors. vs. Nandlal Jaiswal
and Ors. (1986) 4 SCC 566: 1987 (1) SCR 1; Mis Dehri
F Rohtas Light Railway Company Ltd. vs. District Board,
Bhojpur and Ors. (1992) 2 CC 598: 1992 (2) SCR 155;
Municipal Council vs. Shaha Hyder Baig (2002) 2 SCC 48 -
referred to.
G Effect of the judgment and order of the High Court in W.P.
No. 1051 of 1966:
3.1. In the writ petition filed by 'M', the Regional
Settlement Commissioner and Custodian of Evacuee
Property, was arrayed as one of the respondents. That
H only means, he was fully aware of the judgment and order
SHANKARA CO-OP HOUSING SOCIETY LTD. v. M. 477
PRABHAKAR & ORS.
passed by the Writ Court. In the revision petition filed by
A
the other legal representatives of late 'M', he was aJso
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
B
again, in the order by the Collector-cum-Deputy
Custodian dated 28.5.1979, there was no reference to the
judgment and order passed by the High Court. However,
in the order passed by Chief Settlement Commissioner
of Evacuee Property, then~. was reference to the judgment c
of the High Court. The said authority while setting aside
the order passed by Collector-cum-Deputy Custodian as
nullity, did not rely on the judgment and order passed by
the High Court. In the subsequent Writ Petition filed, the
respondents, in their Counter Affidavit had specifically 0
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, observed in its
E
order that 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
F
· remedy of appeal is available under the Act. By that, it
cannot be assumed that this Court had upheld the G
Notification issued under Section 7 of the Act". The
reasoning and conclusion reached by the Division Bench
of the High Court cannot be accepted. The decision of
the court was not correctly read. However, it is agreed
that the judgment should be read as a whole and
H
478
SUPREME COURT REPORTS
[2011] 7 S.C.R.
A understood in the context and circumstances of the facts
of that case. [Paras 72 and 73] [524-E-H; 525-A-F]
U. P. State Road Transport Corporation v. Asstt.
Commissioner of Police (Traffic) Delhi 2009(3) SCC 634 -
8
referred to.
3.2 The judgment and order passed by the High
Court in W.P. No. 1051 of 1966 is noticed. The court, while
narrating the facts, specifically observed that what was
challenged before it by the petitioner was the Notification
C 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
observed that petitioner has failed to avail the alternate
remedy of appeal provided under the Act and at the
D 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
E Act, could not have filed the writ petition. 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
F belated stage. Therefore, 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 it can be said that
G principles of res judicata would apply in the facts and
circumstances of this case. This Court is 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
H
SHANKARA CO-OP HOUSING SOCIETY LTD. v. M.
479
PRABHAKAR & ORS.
of action at a belated stage in a writ petition filed in the
A
year 1990. The course adopted by the High Court not
only leads to confusion but also leads to inconvenience.
(Para 74] [526-B-G]
Shakur Basti Shamshan Bhumi Sudhar Samiti v. Lt.
Governor, NCT of Delhi (2007) 13 SCC 53: 2007 (13)
SCR 145; A.P. Housing Board v. Mohd. Sadatul/ah (2007)
6 SCC 566: 2007 (5) SCR 107; Hindustan Construction Co.
B
Ltd: and Anr. v. Gopal Krishna Sengupta and Ors.- (2003) 11
SCC 210; Food Corporation of India v. S.N. Nagarkar, (2002)
C
2 SCC 475; Oriental Bank of Commerce v. Sunder Lal Jain
and Anr. (2008) 2 SCC 280: 2008 (1) SCR 213; India
Household and Healthcare Ltd. v. LG Household and
Healthcare Ltd. 2007 (5) SCC 510: 2007 (3) SCR 726 -
referred to.
D
4. The submission that the writ petition was filed by
one of the co-owners of late 'M' and judgment and order
passed would not bind the other parties cannot be
accepted. No co-owner has a definite right, title and
interest in any particular item or portion thereof. On the
E
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. [Para 75) [527-B-C]
A. Viswanath Pillai and Ors. vs. The Special Tahsildar
F
for Land Acquisition No. IV and Ors. (1991) 4 SCC 17: 1991
(3) SCR 465 - referred to.
Constructive Res judicata:
5. It is admitted fact that when the contesting
G
respondents filed W.P. No. 1051 of 1966, the ground of
non-compliance of statutory provision was very much
available to them, 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
H
480
SUPREME COURT REPORTS
[2011] 7 S.C.R.
A under the Evacuee Property Act. In the subsequent writ
petition, initially, they had not questioned the legality of
the Notification, but raised it by filing an application which
was allowed by the High Court. Thus, the High Court was
not justified in permitting the contesting respondents to
B raise that ground and answer the same, since the same
is hit by the principles analogous to constructive res
judicata. [Para 78] [529-A-C]
Daya Rao vs. State of U.P. (1962) 1 SCR 574; Hosunak
Singh vs. Union of India (1979) 3 SCC 135: 1979 (3) SCR
C 399; Devi/al Modi, Proprietor, Mis Daluram Pannalal Modi
v. Sales Tax officer Rat/am and Ors. AIR 1965 SC 1150:
1965 SCR 686 - referred to.
Whether the High Court could have gone into the facts
D under its writ jurisdiction:
6.1. The High Court in its writ jurisdiction does not
enquire into complicated questions of fact. The High
Court also does not sit in appeal over the decision of an
E 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
F there is no legal evidence before the authority concerned,
or where the decision of the authority concerned is held
to be perverse, i.e., a decision which no reasonable man
could have arrived at on the basis of materials available
on record. Where an enquiry into complicated questions
G of fact is. necessary before the right of aggrieved party
to obtain relief claimed may be determined, the court may,
in appropriate cases, decline tO enter upon that enquiry,
but the question is always one of discretion and not of
jurisdiction of the court which may, in a proper case,
H
SHANKARA CO-OP HOUSING SOCIETY LTD. v. M. 481
PRABHAKAR & ORS.
enter upon a decision on questions of fact raised by the
A
petitioner. [Para 80] [530-A-D]
6.2. 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 B
Section 7 of the Evacuee Property Act was questioned.
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
C
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 if it
involves disputed questions of facts. [Para 90] [535-A-C]
D
Custodian of Evacuee Property Punjab and Ors. vs.
Jafran Begum (1967) 3 SCR 736 - relied on.
Surya Dev Rai vs. Ramchander Rai and Ors. (2003) 6
E
SCC 675: 2003 (2) Suppl. SCR 290; Ranjit Singh vs. Ravi
Prakash (2004) 3 SCC 682:2004 (3) SCR 250; Kamataka
State Industrial Investment and Development Corporation Ltd.
vs. Cava/et India Ltd. and Ors. (2005) 4 SCC 456: 2005 (2)
SCR 1183; State of Orissa vs. Dr. Miss Binapani Dei and
F
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 Ors. (1971) 3 SCC
792; ABL International Ltd. and Anr. vs. Export Credit
Guarantee Corporation of India Ltd. and Ors. (2004) 3 SCC
553 - referred to.
G
Whether the lands in question are evacuee property
under Evacuee Property Act:
7 .1 It is admitted that before the High Court, parties
H
482
SUPREME COURT REPORTS
[2011] 7 S.C.R.
A to the /is had not produced any records. The contesting
respondents claimed that they were not dispossessed
from the lands in dispute pursuant to any money decree
by late 'R' or his legal representatives. It is the stand of
the appellants and also the State Government that the
B name of late 'R' had been recorded in the Khatra
Khatauni and the authorities under the Evacuee Property
Act after issuing notices to the legal representatives of
late 'R' and also the public notice, the Notification under
Section 7 of the Act was issued and gazetted. Since the
c 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
0 not dispossessed from their lands in accordance with
law. The reasoning 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 'R' found a place in the revenue
E 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
contesting respondents to prove their title, right and
interest in the property. It is very strange that the High
F Court, in the absence of any records of the year 1952,
proceeded 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.
3 It also looks odd and queer that the High Court, in the
absence of any records of the civil court and the
executing court, proceeded 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
H auctioned disputed lands and late 'R' became the owner
SHANKARA CO-OP HOUSING SOCIETY LTD. v. M.
483
PRABHAKAR & ORS.
of the lands, though it concedes that the above said facts
A
have to be proved with reference to the records and
there cannot be oral evidence in this regard. It was highly
inappropriate for the High Court to have proceeded to
determine whether any notice was issued to late 'M'
before notifying the property as evacuee property
B
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. c
Thus, the High Court was wholly incorrect when it arrived
at a finding that there is manifest illegality while issuing
Notification under Section 7 of the Evacuee Property Act.
The findings and the conclusion reached by the
Collector-cum-Deputy Custodian in his order dated
0
28.05.1979 that 'M' and other contesting respondent
continue to be the owners of the disputed lands cannot
be accepted. [Para 92] [537-8-H; 538-A-E]
7.2 The High Court in the impugned judgment, gave
a finding that the authorities under the Act have violated
E
the principles of natural justice in not issuing notice to
the owners. of the lands in dispute before taking any
action under the Act. 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
F
material was produced by the petitioners in support of
their assertion made in the writ petition. Though, this
assertion was denied by the re~pondents in their counter
affidavit filed before the Court, this issue is answered by
the High Court in favour of the contesting respondents.
G
The findings and conclusion reached by the High Court
in this regard, cannot be accepted. [Para 93] [538-E-G]
Effect of acquisition and distribution of the Evacuee
Property under the Displaced Persons (Compensation
and Rehabilitation) Act, 1954:
H
484
SUPREME COURT REPORTS
[2011) 7 S.C.R.
A
8.1 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
B 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 in itself in the
matter of dealing with evacuee property. The question
whether any property or right or interest in any property
c is or is not evacuee property can be adjudicated only by
the custodian and not the civil courts. 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
0 which would include violation of principles of natural
justice before notifying a property an evacuee property.
[Para 102) [541-C-E; 542-C]
8.2 The Displaced Persons Act provides for payment
of compensation and rehabilitation grants to displaced
E persons and for matters connected therewith. Section 12
of the Act authorizes the Central Government to acquire
the evacuee property for rehabilitation of the displaced
persons if it so desires and on such acquisition the
property shall vest absolutely in the Central Government
F 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
G Custodian under Evacuee Property Act. As soon as the
Notification is published, property ceases to be evacuee
property. [Paras 103 and 106) [542-D; 523-B-D]
Major Gopal Singh and Ors. vs. Custodian, Evacuee
Property.Punjab (1962) 1 SCR 328; Basant Ram vs. Union
H
SHANKARA CO-OP HOUSING SOCIETY LTD. v. M. 485
PRABHAKAR & ORS.
of India (1962) Supp. 2 SCR 733; Dafedar Niranjan Singh
A
and Anr. vs. Custodian, Evacuee Property (Pb.) and Anr.
(1962) 1 SCR 214; Abdu/Majid Hazi Mohammed vs. P.R.
Nayak AIR 1951 Bombay 440; Dr. Zafar Ali Shah and Ors.
v:s. The Assistant Custodian of Evacuee Property (1962) 1
SCR749; Ebrahim Aboobaker vs. Tek Chand Dolwani (1953)
B
SCR 691; Nasir Ahmed vs. Assistant Custodian General,
EvacueeProperty, U.P. Lucknow and Anr. (1980) 3 SCR 248;
Haji Siddik Haji Umar and Others. vs. Union of India (1983)
1 sec 408: 1983 (2) SCR 249 -
refer~ed to.
9.1 Section 24 of the Displaced Persons Act gives C
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 hilnself as to legality or propriety of any order
passed therein and to pass such order in relation thereto
D
as he thinks fit. The S.ection 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
E
Managing Corporation. A bare reading of the Section
shows that the ChiefSettlement Commissioner can revise
the order if in his opinion the orders passed by the .
officers named in the Section are either illegal or
improper. [Para 110] [545-F-H; 546-A]
F
9.2 In the instant case, the Chief Settlement
Commissioner invoked his revisional powers at the
request of the allottees/displaced persons to revise the
proceedings and the order passed by the Collector-cumG
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. What
the Chief Settlement· Commissioner can do' is only to
revise the orders passed by those officers who are
H
486
SUPREME COURT REPORTS
(2011] 7 S.C.R.
A 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. Therefore, the orders passed by the
Chief Settlement Commissioner in exercise of his
B revisional powers under the Displaced Persons Act is
without jurisdiction and non-est in law. [Para 110] [546B-D]
S. S. Batu and Anr. vs. State of Kera/a and Ors. (2009) 2
c SCC 479: 2009 (1) SCR 196; New Delhi Municipal Council
vs. Pan Singh and Ors. (2007) 9 SCC 278: 2007 (3) SCR
711; K. V. Raja/akshmiah Setty and Anr. vs. State of Mysore
and Anr. (1967) 2 SCR 70; Thakore Sobhey Singh vs. Thakur
Jai Singh and Ors. (1968) 2 SCR 848; Mohan /al Goenka vs.
D
Beney Krishan Mukher Jee and Ors. (1953) SCR 377;
Shashivraj Gopalji vs. Ed. Appakath Ayissa and Ors. 1949 PC
302 - referred to.
Case Law Refnrence:
2008 (16) SCR 28
Referred to.
Paras 27, 50
E
2009 (1) SCR 196
Referred to.
Para 27
2007 (3) SCR 711
Referred to.
Para 27
(1967) 2 SCR 70
Referred to.
Para 27
F
(1968) 2 SCR 848
Referred to.
Para 28
(1953) SCR 377
Referred to.
Para 28
1949 PC 302
Referred to.
Para 28
G
2003 (2) Suppl. SCR 290 Referred to.
Para 29, 79, 82
2004 (3) SCR 250
Referred to.
Para 29, 79, 83
2005 (2) SCR 1183
Referred to.
Para 29, 79, 84
H
(1962) 1 SCR 328
Referred to.
Para 30, 94, 95
SHANKARA CO-OP HOUSING SOCIETY LTD. v. M. 487
PRABHAKAR & ORS.
(1962) Supp. 2 SCR 733 Referred to.
Para 30, 94, 96
A
(1962) 1 SCR 214
Referred to.
Para 30, 94
(1874) 5 PC 221
Referred to.
Para 46
AIR 1967 SC 1450
Referred to.
Para 46
B
1969 SCR 808
Referred to.
Para 46
1975 (2) SCR 960
Referred to.
Para 47
1995 (1) Suppl. SCR 492Referred .to.
Para 48
c
2007 (1) SCR 1127
Referred to.
Para 49
1987 (1) SCR 1
Referred to.
Para 51
1992 (2) SCR 155
Referred to.
Para 52
(2002) 2 sec 48
Referred to.
Para 61
D
2007 (13) SCR 145
Referred to.
Para 65
2007 (5) SCR 107
Referred to.
Para 66
(2003) 11 sec 21 o
Referred to.
Para 67
E
(2002) 2 sec 475
Referred to.
Para 68
2008 (1) SCR 213
Referred to.
Para 69
2007 (3) SCR 726
Referred to.
Para 70
F
2009 (3) sec 634
Referred to.
Para 73
1991 (3) SCR 465
Referred to.
Para 75
(1962) 1 SCR 57 4
Referred to.
Para 76
1979 (3) SCR 399
Referred to.
Para 76
G
1965 SCR 686
Referred to.
Para 77
(1967) 2 SCR 625.
Referred to.
Para 79, 85
(1969) 3 sec 769
Referred to.
Para 79, 86
H
488
SUPREME COURT REPORTS
[2011] 7 S.C.R.
A
(1971) 3 sec 792
Referred to.
Para 79, 87
(2004) 3 sec 553
Referred to.
Para 79, 88
(1967) 3 SCR 736
Relied on.
Para 90
B
AIR 1951 Bombay 440
Referred to.
Para 97
(1962) 1 SCR 749
Referred to.
Para 98
(1953) SCR 691
Referred to.
Para 99
(1980) 3 SCR 248
Referred to.
Para 100
c
1983 (2) SCR 249
Referred to.
Para 106
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4099 of 2000.
D
From the Judgment & Order dated 27.4.2000 of the High
Court of Judicature, Andhra Pradesh at Hyderabad in Writ
Petitio No. 17722 of 1990
WITH
E C.A. Nos. 4101, 4100, 3949 of 2011.
P.S. Narasimha, Ranjit Kumar, L. Nageswara Roa, C.
Mukund, Avneesh Garg, P.V. Saravanaraja, Firdouse Outb
Wani, Jayant Mohan, Pankaj Jain, Bijoy Kumar Jain, C.K.
Sucharita, Nirada Das, T.V. Ratnam, Ramesh N. Keshwani,
F Ram Lal Roy, Shishir Pinaki, C. Satyanarayana Reddy, S.
Ashok Reddy, C.S.N. Mohan Rao, Asha G. Nair, T.V. Ratnam,
Farrukh Rasheek, V.N. Raghupathy, Lawyers' Knit & Co., M.
Srinivas R Rao, Abid Ali Beeran P., John Mathew, P. Venkat
Reddy, B. Ramamurthy, T. Anamika, D.N. Ray, Lokesh K.
G Choudhary, Sumita Ray, D. Bharathi Reddy, Neeru Vaid for the
appearing parties.
The Judgment of the Court was delivered by
H.L. DATTU, J.1. We grant leave in the special leave
H petition filed by the State of Andhra Pradesh.
SHANKARA CO-OP HOUSING SOCIETY LTD. v. M. 489
PRABHAKAR & ORS. [H.L. DATTU, J.]
2. In these civil appeals, we are required to consider
A
essentially the erstwhile legislations with regard to the
administration of property left behind in India by ev~cuees
migrated to..,,Pa.kis,an !;!μring_ part.it.ion and. th.e. coryipe11sat9ry
redistribution of the same amongst those persons who had
migrated from Pakistan, leaving behind their property, at the
B
time of partition.
3. The subject matter are ttie 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
C
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
D
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.
E
The Stat~ Government has also filed Special Leave Petition
(c) No. 6964 of 2001 under Article 136 of the Constitution, in
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
F
up C.A .. No.