REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICITION

CIVIL APPEAL NO.   7405          OF 2008 (Arising out of SLP (C) No.15579 of 2006)

Shri Najmuddin & Ors. … Appellants

Versus

Union of India & Ors. … Respondents

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. Appellant is before us aggrieved by and dissatisfied with a judgment and

order dated 25.8.2006 passed by a Division Bench of the High Court of Judicature

at Delhi in CM No.7244 of 2005 and Writ Petition No.2068 of 1985.

3. Appellants who are three in number filed the aforementioned writ petition in

the year 1985 questioning the validity and/or legality of a notification issued by

the Union of India seeking to acquire lands bearing Khasra No.186, admeasuring 3

Bigha  6  Biswas  pertaining  to  Khewat  No.50/50,  Khatoni  No.100  and  Khasra

No.334/206  admeasuring  3  bigha  6  biswas  as  per  Khewat  No.92/96,  Khatoni

No.174, both situated at Village Begumpur, Tehsil Mehrauli, Delhi purported to

be  in  terms of  the  Resettlement  of  Displaced  Persons  (Land  Acquisition)  Act,

1948 (for short, ‘the Act’).  Indisputably, the said Act was enacted in the wake of

partition of the country as a result whereof there was a large scale migration to and

from India.   

Md. Sheruddin whose name was said to have been recorded in Jamabandi in

the  year  1948-1949  shifted  to  Meerut  in  the  State  of  Uttar  Pradesh.   He  was

declared an evacuee in terms of the Administration of Evacuee Property Act in the

year 1953.  He prayed for restoration of the said land and allegedly an order in his

favour was passed on 28.7.1956 by the Additional Custodian of Evacuee Property

(Rural).  Yet again after the death of Md. Sheruddin which took place on 9.4.1958,

the  property  was  declared  to  be  an  evacuee  property  and  yet  again  an  order

restoring the land in question in favour of the appellants  herein was passed on

10.10.1958 by the appropriate authority accepting their claim of entitlement to the

extent of 1/3rd share of said Md. Sheruddin.   

4. Appellants  contend that although a purported notification in terms of the

provisions  of  the  said  Act  was  issued  in  1948  but  they  were  not  aware

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thereof.  They came to know of the said notification while some officials of

the Delhi Development Authority (DDA) came on the said land representing

that the same had been transferred in its favour and, thus, were required to

take possession thereof.  

An application for injunction was also filed in the said suit.  Thereafter a

suit  was filed.   An interim order was passed restraining the  defendant  from

forcibly dispossessing them.  The said suit, however, was withdrawn and a writ

petition was filed praying, inter alia for the following reliefs :

“(a) quashing  the  notification  No.F1/(72)/48-LSG(III) (Annexure P-5) and the offer No.1000-A alleged to be made on 7.5.1962 (Annexure P-6) in respect of  the  said  land  of  the  petitioner  comprising  of Khasra  Nos.186/2  (2  Bighas  18  Biswas)  and Khasra No.334/206 (19 Biswas) total measuring 3 bighas 17 biswas situated in the revenue estate of village  Begum  Pur,  Tehsil  Mehrauli,  Union Territory of Delhi.

(b) quashing the entire acquisition proceedings or any other  subsequent  actions  of  the  respondents  by calling the records of the petitioner’s case.

(c) to issue a writ directions order declaring that the notification and the offer (Annexures P-5 and P-6) qua the petitioners’ land are illegal null and void and have no effect whatsoever.

(d) declaring  that  the  action  of  the  respondents  are invidation of fundamental, constitutional and legal rights guaranteed to the petitioners under Articles 14,  19,  21,  31 and 300-A of the Constitution  of India.

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(e) restraining  the  respondents  from interfering  with the  petitioners  peaceful  occupation,  possession, user,  enjoyment,  right,  title  and  interest  in  the aforesaid  land  houses  and  structures  standing thereon and further directing the respondents not to  interfere in  any manner in respect  of the said land.

(f) restraining  the  respondents  from  taking  forcible possession of the aforesaid land and houses of the petitioners standing thereon.”

5. Indisputably, an ad-interim order dated 30.8.2005 was passed by the High

Court in terms whereof dispossession was directed to remain stayed.  The said ad

interim order was made absolute on or about 20.9.1985.   

Before the High Court,  the  Delhi  Development Authority filed a counter

affidavit, inter alia, contending that they had all along been in possession of the

lands in question pursuant to an award made in the proceedings initiated in terms

of the notification of 1948.  It was furthermore averred :

“That  Shri  Najmuddin  son  of  late  Mohd.  Sheruddin, petitioner,  had  filed  a  suit  against  the Defendant/Respondent  No.4  in  the  Lower  Court  and obtained  stay  order  in  respect  of  Khasra  No.186  and 334/206  of  village  Begumpur  to  restrain  from demolishing  the  plaintiff/petitioner  from  the  land  in question unless through due process of law.  The same has been vacated on 14th February, 1985.

That the possession of the suit land along with other land in  this  area  has  been  handed  over  to  the  Delhi

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Development  Authority  after  removal  of  the engrossments.  The petitioners are no more in possession of the land in suit.

That the land in suit belongs to the Government of India (MOR)  and  has  been  transferred  to  the  answering Respondent  by  the  Ministry  of  Rehabilitation  under  a package deal vide Government letter No.4(19)/78/….-II (Vol….)  dated  2.09.82  and  the  possession  has  been handed  over  to  the  DDA  by  the  Ministry  of Rehabilitation  on  09.08.85  after  removal  of  the encroachment.”

6. The  said  writ  petition  was  listed  for  hearing  in  2002.   Appellants  were

taking adjournments.   The writ  petition was ultimately dismissed for default  on

11.2.2005.

7. An  application  for  restoration  was  filed,  in  support  whereof  one  Shri

Sanjeev Singh affirmed an affidavit, stating :

“That I am the duly constituted power of attorney of the original  petitioners,  namely,  Shri  Najmuddin,  Shri Mohiuddin and Shri Wahabuddin, all sons of Late Mohd. Sheruddin  and  residents  of  House  No.226  village  – Hauzrai (Near Malviya Nagar), New Delhi 110017 and as such competent to swear this affidavit.”

8. As an affidavit  in support  of  the said application for restoration was not

affirmed by any of the appellants, the power of attorney in terms whereof the said

deponent claimed himself to be entitled to affirm an affidavit on their behalf was

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directed to be filed pursuant whereto a General Power of Attorney dated 24.9.1985

executed by appellant, wherein it was stated as under :

“25. And  we  do  hereby  declare  that  by  virtue  of agreement to sell executed between us and the said (1) Sh. Sanjiv Singh, (2) Sh. Noordesh Singh both sons of Sh.  Pal  singh  and  (3)  Smt.  Pushpa  Devi  w/o  Sh.  Pal Singh all r/o house No.A-26, Ring Road, Lajpat Nagar- IV, New Delhi 110 024, whereunder we have received a sum  of  Rs.1,50,000/-  (Rupees  one  lac  fifty  thousand only) as per receipts duly signed and executed by us in full and final consideration amount of the aforesaid land, the possession of which is already with the said persons for  the  last  so  many years,  thus  this  deed  of  General Power of Attorney is for valuable consideration and as such its irrevocable and shall always remain irrevocable. We shall not cancel or withdraw the powers given under this  deed  of  General  Power  of  Attorney,  under  any circumstances whatsoever.”

9. In an affidavit affirmed on 30.3.2006, the Appellant No.1 stated :

“That  my  other  two  brothers  namely  i.e.  Mohiuddin, Wahabuddin are the co-owners along with me in land in question and both of them frequently go on visits with respect  to  their  works i.e.  Rajmistri  and presently they are at Gwalior and since I am an old man and unable to look after  the instant  litigation,  we had appointed Shri Sanjeev Singh to look after the litigation of the instant case.

That there was an intention and likelihood to sell off the land in question but, however, I have never sold off the land in question in any manner whatsoever.”

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10. By reason of the impugned judgment,  the application for restoration was

dismissed, holding :

(1) Appellants,  having  transferred  their  land  in  terms  of  the  said  power  of

attorney, were in effect pursuing a proxy litigation on behalf of some other

persons.

(2) A third party right having been created without permission of the court, they

were not entitled to any indulgence of the Court.   

(3) In view of the averments  made in paragraph 25 of the General Power of

Attorney dated 24.9.1985, it is evident that appellants have sold away their

interest in the property.   

(4) The averments made in the affidavit affirmed by the appellant No.1 are by

way of an afterthought and does not clearly rule out the impact of clause 25

of the power of attorney.   

It was furthermore held :

“In any event, we heard the submissions of Mr. Harish Malhotra, learned senior counsel for the petitioners.  The challenge in the writ petition is to a notification dated 7th May,  1962   Mr.  Malhotra  was  unable  to  give  any satisfactory  explanation  as  to  why  the  present  writ petition filed on 2.8.1985 should not be dismissed on the ground of laches alone.  Further in the counter affidavit filed by the DDA, it was pointed out that the petitioners

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had filed a suit against the DDA in respect of the same land and a stay order  obtained in the said proceedings stood vacated.  Following this the possession of the land in question was handed over to the DDA.  It was pointed out that the petitioner were no longer in possession of the said land.  Mr. Malhotra was unable to explain why these facts had been suppressed in the writ petition.  He also fairly  stated  that  no  rejoinder  had  been  filed  denying these submissions in the counter affidavit.

Mr. Malhotra attempted to point out that the acquisition of  the  land  in  question  under  Section  3  of  the Resettlement  of  Displaced  Persons  (Land  Acquisition) Act,  1948  was  wholly  illegal  because  no  notice  as contemplated under Section 4 of the Act was served on the  petitioners.   In  our  view  this  plea  no  longer  is available to be urged by the petitioners 23 years after the notification,  particularly  considering  the  fact  that  the original notification was issued on 16th September, 1948 and the impugned notification on 7th May, 1962.  Clearly, the challenge is barred by laches.”

11. Mr.  Mukul  Rohtagi,  learned  senior  counsel  appearing  on  behalf  of  the

appellant, would, inter alia, contend :

(1) The  High  Court  committed  a  serious  error  in  passing  the  impugned

judgment in so far as it failed to take into consideration that the appellants

had been pursuing their remedies in the writ application bona fide.

(2) While  considering  an  application  for  restoration  of  the  writ  petition,  the

High Court should not have considered the merit of the writ petition itself.

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(3) In any event, the writ  petition having not been disposed of on merit,  the

same should be directed to be heard on merit on such terms as the court may

think fit and proper.

12. Mr.  Krishna  Kumar,  learned  counsel  appearing  on  behalf  of  Delhi

Administration and Mr. Saharya, learned counsel appearing on behalf of DDA, on

the other hand, supported the impugned judgment.

13. The Writ Petition was dismissed for default, as noticed hereinbefore, by an

order dated 11.2.2005.  For reasons best known to the appellants they have not

filed  a  copy of  the  said  order.   When a  writ  petition  is  dismissed  for  default,

indisputably, the High Court may restore the same in exercise of its jurisdiction

under  Article  226  of  the  Constitution  of  India  itself  and/or  in  exercise  of  its

inherent  power.   For  the  purpose  of  passing  such order  conduct  of  the parties

would be a relevant factor.  Appellants filed a writ application, inter alia, on the

premise that they had no knowledge of the purported notification issued by the

Delhi Administration which was issued as far back as in 1962.   

It  was contended even before  us  that  the  appellants  did  not  receive  any

amount of compensation.  Appellants  do not deny or dispute that the power of

attorney  in  favour  of  Sanjeev  Singh  and  others  was  executed.   It  also  stands

admitted that the same has not been revoked.  The very basis on which the writ

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petition  was  filed  was  their  purported  continuous  possession  of  the  land  in

question.  In the writ petition, no averment had been made as regards institution of

a suit but in the list of dates, it has been mentioned that an interim order had been

passed in the suit.  However, from the impugned judgment, now it transpires that

the said interim order was vacated and only thereafter the suit was withdrawn and

the writ petition was filed.

14. It is true that in the writ petition, an interim order was passed in their favour.

It,  however,  now  transpires  that  an  Arbitrator  appointed  under  the

Rehabilitation Act had made an award on or about 7.5.1962 in respect of one-third

share of Md. Sherruddin for Plot  No.334/206 and one-eighteenth  share of Plot

No.404/315, 405/315, 402/315, 403/315, 316/227, 317/227 and 318/227 at the rate

of Rs.322 per bigha plus interest at the rate of 4 per cent per annum.  An ex gratia

amount was also directed to be paid from the date of taking over of possession.   

Appellants were, thus, merely co-sharers.  They have not stated that there

had been a partition amongst the co-sharers or they were in possession of a part of

the lands appertaining to the aforementioned Khasras.

15. It appears from the records that on or about 8.10.1991, an application was

filed to make the order of stay dated 30.8.1985 absolute and allow the appellant to

deal freely with his one-third share of the land in any manner he liked.  Therein

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also  appellants  claimed  themselves  to  be  owner  in  possession  of  the  lands  in

question.  The General Power of Attorney executed by the appellants on 24.9.1985

evidently was an irrevocable one.  By reason thereof, all the powers of the owners

were delegated; clause (4) whereof reads as under :

“To submit and file all  kinds of applications, petitions, affidavits, written statements, suits, writs in any court of law or  in  the  High  Court  or  in  the  Supreme Court  or before Revenue Courts in respect of the above said land and pursue all matters, writs, suits, applications, petitions pending  before  any  court  of  law  or  any  Government office or authority in respect of the said land.”

16. Despite the same, in his affidavit filed on 13.03.2006, appellant No.1 stated

that he never intended to sell the property in favour of the said Sanjeev Singh and

others.  If the said constituted attorney had been in possession of the property in

question for a long time, as has been averred in paragraph 25 of the General Power

of  Attorney,  evidently  the  appellant  had  not  been  in  possession  thereof  and

consequently, the story that they came to know about the said notification issued

in the year 1962 cannot be accepted as correct.   As the constituted attorney of

appellants had been in physical possession of the property and had been pursuing

the writ  petition before the  High Court,  the  averments  made in the subsequent

affidavits  cannot  be  accepted  as  correct.   Even  the  said  stand  taken  by  the

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appellant No.1 cannot be accepted in view of Section 91 of the Indian Evidence

Act.   

17. The High Court, therefore, in our opinion, cannot be said to have committed

any  error  in  refusing  to  exercise  its  discretionary  jurisdiction  in  favour  of

appellants.  The impugned order, therefore, does not warrant any interference by

us  in  exercise  of  our  discretionary  jurisdiction  under  Article  136  of  the

Constitution of India.   

18. The appeal is,  therefore, dismissed with costs.  Counsel’s  fee assessed at

Rs.50,000/-.

……………………….J.

(S.B. Sinha)

……………………….J.

(Cyriac Joseph)

New Delhi;

December 18, 2008

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