IMPORTANT POINTS
Delay and laches if properly explained, are not fatal.
Doctrine of amity and comity and constructive res judicata.
A decree against one co-owner binds all coparceners.
After notification u/s 12(1) of the Act 1954, the disputed land ceases to be evacuee property.

Headnote:(a) Judicial Review – General Power of Attorney holder of deceased has no locus-standi to file an appeal. (Para 22)
        (b) Constitution of India – Article 226 – Delay and laches – Effect of delay and laches – Every delay and laches is not fatal – May be condoned on reasonable explanation – Court may refuse to condone the delay if caused by pursuing remedy not statutorily provided – Mere representation may not be a valid ground to condone the delay – Inordinate delay of nearly 15 years unexplained – Third party right accruing during the period of delay – Petition not to be entertained. (Paras 53 and 61)
        (1874) 5 PC 221; AIR 1967 SC 1450; AIR 1969 SC 329; (1975) 4 SCC 714; (1995) 4 SCC 683; (2007) 9 SCC 274; (2009) 1 SCC 168; (1986) 4 SCC 566; (1992) 2 SCC 598; (2002) 2 SCC 48 – Relied upon
        (c) Judicial Review – Once the order of the High Court has attained finality then it is not open for the lower courts or even for the High Court to ignore the said Order. (Para 66)
        (2007) 13 SCC 53; (2007) 6 SCC 566; (2003) 11 SCC 210; (2002) 2 SCC 475; (2008) 2 SCC 280 – – Relied upon
        (d) Judicial Propriety – Doctrine of Amity and Comity – When a competent court refused to entertain a challenge made to a notification in a writ petition in the year 1966, the High Court could not have entertained another writ petition on the same cause of action in the year 1990. (Para 74)
        (2007) 5 SCC 510 – Relied upon
        (e) Hindu Law –No co-owner has a definite right, title and interest in any particular item or portion thereof – On the other hand, all the coparceners have right, title and interest in every part and parcel of the joint property or coparcenery – Therefore a decree against one co-owner binds all coparceners. (Para 75)
        (1991) 4 SCC 17 – Relied upon
        (f) Constructive Res judicata – Ground of non-compliance of statutory provision, though available, not raised in writ petition of 1966 – Even in 1990 the issue not raised initially but by way of amendment – Writ allowed – Not permissible. (Para 77)
        AIR 1965 SC 1150 – Relied upon
        (1962) 1 SCR 574; (1979) 3 SCC 135 – Distinguished impliedly
        (g) Constitution of India – Article 226 – Under Evacuee Property Act there being a specific bar for the civil court to adjudicate on the issue whether certain property is or is not evacuee property, the findings and the conclusion can be questioned u/ Art. 226 even if it involves disputed questions of facts. (Para 90)
        (1967) 3 SCR 736; (2003) 6 SCC 675; (1967) 2 SCR 625; (1969) 3 SCC 769; (1971) 3 SCC 792; (2004) 3 SCC 553 – Relied upon
        (2004) 3 SCC 682; (2005) 4 SCC 456 – Distinguished impliedly
        (h) Constitution of India – Article 226 – Disputed land recorded in revenue records in the name of respondents’ predecessor – Substituted by Custodian in later entries – Without any further record or evidence High Court finding the notification u/s 7 of Evacuee Property Act illegal – Not acceptable. (Para 92)
        (i) Constitution of India – Article 226 – Without any material High Court holding that notice was not issued and this violated principle of natural justice – Not acceptable. (Para 92)
        (j) The Displaced Persons (Compensation and Rehabilitation) Act, 1954 – Section 12(1) – Notification u/s 12(1) can be issued only in respect of evacuee land validly determined u/s 7 of the Evacuee Property Act, 1950 – After notification u/s 12(1) the disputed land ceases to be evacuee property and the Custodian is denuded of its power under Act 1950 – Thereafter it cannot be dealt with under the Act 1950 or the Rules framed thereunder. (Para 96)
        (1962) 1 SCR 328; (1962) Supp. 2 SCR 733; (1962) 1 SCR 214; [1962] 1 SCR 749; [1953] SCR 691; [1980] 3 SCR 248; (1983) 1 SCC 408 – Relied upon
        AIR 1951 Bombay 440 – Cited with approval
        (k) The Displaced Persons (Compensation and Rehabilitation) Act, 1954 – Section 24 – Chief Settlement Commissioner can only revise the orders passed by the officers specified in the Section itself if the order so passed is either illegal or improper – Revision of the orders under the provisions of the Evacuee Property Act without jurisdiction and non-est in law. (Para 110)
       Facts of the case:
        These appeals are concerned with 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.
       Finding of the Court:
        The disputed land is evacuee property.
        Chief Settlement Commissioner acted without jurisdiction.
       Result : Appeals allowed.

JUDGMENT

H.L. Dattu, J. —

1) We grant leave in the special leave petition 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 Leave Petition © 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 up C.A. No. 4099 of 2000, in the case of Shankara Co-op. Housing Society Ltd. as the lead case for the purpose of narrating the facts leading upto the impugned judgement.

5) The facts in xtensor require to be noticed. They are:- The disputed lands originally belonged to one Mandal Bucham, whose legal representatives are respondents herein. Shri Mandal Bucham had borrowed paper currency from late Rahim Baksh Khan and since he failed to discharge the amount due, late Rahim Baksh Khan had filed a civil suit against Mandal Bucham before the District and Sessions Judge at Hyderabad District. It appears that the Court had passed a judgment and decree in favour of late Rahim Baksh Khan. In the execution proceedings of the decree, it is alleged that late Rahim Baksh Khan had purchased the disputed lands belonging to Mandal Bucham in an auction under the supervision of the Court. Rahim Baksh Khan expired in the year 1940 and later on, it appears, his legal representatives had migrated to Pakistan after partition of India.

6) It is averred that the Deputy Custodian and Collector, Hyderabad District, had issued notice dated 11.01.1951, to the legal heirs of late Rahim Baksh Khan, namely Mr. Rafi Mohammed Khan and Mr. Shafi Mohammed Khan, under sub-Section (1) of Section 7 of the Administration of Evacuee Property Act, 1950 [hereinafter referred to as “the Evacuee Property Act”] inter alia stating that the “disputed lands” belonged to late Rahim Baksh Khan and they have migrated to Pakistan and they are evacuee and, therefore, he would hold an enquiry in the matter on 27.01.1951 and any person having any share or interest in the above “disputed lands” are directed to participate in the proceedings with necessary documents in support of their claim. It appears that general notices were also published in the village in which the said lands were situated on 26.01.1951. Notice was also given to the ancestors of the contesting respondents on 15.02.1951. It is stated that neither the contesting respondents nor anybody else had filed any objection to the notice issued under Section 7(1) of the Evacuee Property Act.

7) After conducting a detailed enquiry in respect to the claim of ownership of the said property, the Deputy Custodian and Collector issued a Notification No.55, in NO CE/4064 to 4080 dated 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

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2011 Supreme(SC) 488

IMPORTANT POINTS Delay and laches if properly explained, are not fatal. Doctrine of amity and comity and constructive res judicata. A decree against one co-owner binds all coparceners. After notification u/s 12(1) of the Act 1954, the disputed land ceases to be evacuee property.

Cases Referred (43)

IMPORTANT POINTS
Delay and laches if properly explained, are not fatal.
Doctrine of amity and comity and constructive res judicata.
A decree against one co-owner binds all coparceners.
After notification u/s 12(1) of the Act 1954, the disputed land ceases to be evacuee property.