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PETITIONER: SMT. PUJARI BAI

       Vs.

RESPONDENT: MADAN GOPAL

DATE OF JUDGMENT12/07/1989

BENCH: OZA, G.L. (J) BENCH: OZA, G.L. (J) SHETTY, K.J. (J)

CITATION:  1989 AIR 1764            1989 SCR  (3) 383  1989 SCC  (3) 433        JT 1989 (3)    43  1989 SCALE  (2)1

ACT:     Displaced Persons (Compensation and Rehabilitation) Act, 1954/  Displaced  Persons  (Compensation  &  Rehabilitation) Rules, 1954: Section 10/Rule 68. Grant of proprietary rights by Rehabilitation authorities with issue of Sanad--Right  of authorities under Consolidation Act to modify or cancel  the proprietary rights.     East  Punjab Holdings (Consolidation and  Prevention  of Fragmentation) Act, 1948: Section 30---Transfer of  property during  consolidation  proceedings--Has  no  reference   and cannot  have reference to transfer of Sanad issued by  Reha- bilitation Department.     Constitution  of India, 1950: Article  226---Writ  Peti- tion--Dismissal in limine on grounds of laches or  available of  alternative  remedy--Decision does not  operate  as  res judicata.     Civil    Procedure   Code,   1908:    Section    11--Res judicata--Does  not apply where suit, writ petition is  dis- missed in limine.

HEADNOTE:     The  appellant  who migrated from Pakistan in  1947  was allotted  certain  lands. On 29.12.1962 allotment  was  made quasi-permanent  in character, but on 29.4.1963,  the  lands were transferred to her permanently, by a Sanad issued under Rule 68 of the Displaced Persons (Compensation & Rehabilita- tion) Rules, 1954.     The respondent like the appellant had also migrated from Pakistan  and on 29.12.1959 lands were also allotted to  him but no entry could be made in the revenue record.     On 29.6.1960 during consolidation proceedings no tuk was however  made for the respondent. He filed objections  which were  rejected. He unsuccessfully appealed to the  Appellate Authority--The  Settlement Officer (Appeals). In the  second appeal,  the  Assistant Director Consolidation  of  Holdings remanded  the matter to the Special Settlement Officer  with the observation that because of the mistake of the  Consoli- dation  authorities there had been over-allotment,  and  the authorities 384 will see that the first allottee is given the land first.

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   As nothing happened for about three years, the  respond- ent filed a writ petition in 1966 and the High Court direct- ed  implementation  of the order of the  Assistant  Director Consolidation.  The appellant was not a party to  either  of these proceedings.     Pursuant  to the order of the High Court the  Consolida- tion  Officer  started  enforcing the  observations  of  the Assistant Director, found that the land allotted to  various persons was more than the land available for allotment,  and in  order  to resolve this difficulty  evolved  a  via-media procedure.  lie deprived some of the allottees of  the  land allotted to them, and the appellant was one such person.  He allotted  all  such lands to the respondent.  This  was  the commencement of the instant litigation.     Against the aforesaid order of the Consolidation Officer the  appellant  preferred  an appeal  before  the  Assistant Director  which was dismissed and the writ petition  against the said order was rejected by the High Court in limine with only one word, namely, ’dismissed’.     The  appellant having no other alternative instituted  a suit contending that it was impermissible for the Consolida- tion  Officer to adjust the lands, or take away any part  of it which became her absolute property by virtue of the Sanad granted  on 29.4.1963. The trial Court dismissed  the  suit. The  Additional District Judge confirmed that judgment,  and the second appeal to the High Court was also dismissed.     In the appeal to this Court on the question; whether the lands  given to the appellants by permanent Sanad  could  be deprived of in consolidation proceedings without giving them adequate alternate lauds. Allowing the appeal,     HELD:  1.  The authorities under the  Consolidation  Act have no jurisdiction or power to modify or cancel the grante of  proprietary  rights granted in the Sanad  under  s.  10. [392G]     2.  From s. 10 of the Displaced Persons (Compensation  & Rehabilitation)  Act 1954, it is clear that the parties  who were put in possession under initial allotment would contin- ue to remain in possession even after its acquisition by the Central Government. But it is open to the Central Government for the purposes of payment of compensation to 385 such displaced person, transfer to him such property on such terms  and conditions as may be prescribed. Apparently  this refers  to  a permanent transfer in  lieu  of  compensation. [390D-E]     3. Transfer of property referred to in s. 30 of the East Punjab Holdings (Consolidation and Prevention of  Fragmenta- tion) Act, 1948 is either by a landowner or by a tenant, and it  has no reference, and indeed cannot have a reference  to transfer  of  Sanad  under s. 10 of  the  Displaced  Persons (Compensation & Rehabilitation) Act of 1954. The  conferment of  rights in lieu of compensation under s. 10 stands  on  a different footing which could not be contemplated within the language of s. 30 of the Consolidation Act. [391F]     4. When a writ petition after contest is disposed of  on merits  by  a speaking order, the question decided  in  that petition would operate as res judicata, but not a  dismissal in  limine or dismissal on the ground of laches,  or  avail- ability of alternative remedy. [392E-F]     Workmen of Cochin Port Trust v. Board of Trustees of the Cochin Port Trust & Another, [1978] 3 SCR 971, referred to.

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JUDGMENT:     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 601213 of 1983.     From  the  Judgment  and Order dated  31.1.1983  of  the Punjab & Haryana High Court in C.R.S.A. No. 1871 of 1975 and R.S.A. No. 16 11 of 1980.     Shiv Dayal Srivastava, S.K. Bagga and Mrs. Bagga for the Appellant.     Kapil  Sibal,  S. Markandeya, Mrs. C.  Markandeya,  O.P. Ahluwalia,  G.  Seshagiri Rao and Km. U.  Saraswat  for  the Respondents. The Judgment of the Court was delivered by     OZA,  J.  This appeal arises out of a  judgment  of  the Punjab  &  Haryana  High Court delivered  in  Civil  Regular Second Appeal No. 187 1 of 1975 dated 31.12.1983.     This  second  appeal before the High Court of  Punjab  & Haryana  was taken against the judgment of  Additional  Dis- trict Judge, Patiala 386 who  affirming  the judgment of the trial Court  i.e.,  sub- Judge  1st class, Rajpura, maintained the dismissal  of  the suit filed by the plaintiffpresent appellant.     The suit was filed for a declaration that the  appellant plaintiff  is the owner in possession of agricultural  lands measuring  100  Bighas  10  Biswas  comprising  Khasra  Nos. 54-1-2-3-8/3-9-11-19/2,  55-3-4-5-67-15, 55/16, 20  situated in  village  Urdan, Tehsil Rajpura  with  the  consequential relief  of  permanent injunction restraining  the  defendant from  interfering with the possession of the  plaintiff  and dispossession thereof in any manner.     The appellant--Pujari Bai, it is alleged, migrated  from Pakistan in 1947 after the partition of the country and  she left behind in Pakistan a large areas of agricultural  land. In 1949 Government in order to settle such refugees  adopted certain measures and gave land to the displaced persons  for the  purpose  of cultivation. The displaced  persons  claims were examined by the claims organisation set up by the  East Punjab  Government at some places and the lands  were  given individually to those who had left behind agricultural lands in the West Punjab which become Pakistan after 1947. As Smt. Pujari  Bai,  was one of such claimants,  she  was  allotted certain lands in village Urdan. On 29.12.1962 allotment made was quasi permanent in character, but on 29.4.1963 the lands were transferred to her permanently. The transfer was right, title  and  interest in ownership by a Sanad issued  in  the name of the President (the Central Government) under Rule 69 of  the  Displaced Persons (Compensation  &  Rehabilitation) Rules, 1954. This was the basis of her claim.     It  appears  that  the  defendant--respondent  had  also migrated from Pakistan like the appellant and on  29.12.1959 some  lands were also allotted to him but no entry could  be made  in the revenue record and it was not  certain  whether possession was taken by the respondent. On 29.6.1960  during the consolidation proceedings, no tuk was however, made  for the respondent. He filed objections and to these  objections Pujari Bai was not a party. The objections were rejected. It appears that against this order he appealed to the Appellate Authority--The Settlement Officer (Appeals) and this  appeal also  was dismissed. He took up the matter in second  appeal to  the  Assistant Director Consolidation  of  Holdings  who remanded  the matter to the Special Settlement Officer  with certain observations. He observed "that there have been over allotment  and authorities will see that first  allottee  is given land first". He also observed that it all happened 387

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because  of  the mistake of the  Consolidation  authorities. This order was passed on 2.12.1963.     In  spite  of this remand order made  by  the  Assistant Director  Consolidation,  nothing happened for  about  three years.  In 1966 the respondent filed a writ petition  before the High Court of Punjab & Haryana. Even to this writ  peti- tion  the present appellant Pujari Bai was not a  party.  In this  writ petition a direction was sought to implement  the aforesaid order of the Assistant Director Consolidation. The High  Court by the order dated 25.11.1966 directed that  the observations contained in the order passed by the  Assistant Director should be complied with.     After the direction of the High Court the  Consolidation Officer became active. He started enforcing the observations contained in the remand order of the Assistant Director  and in  so  doing, he found that the land  allotted  to  various persons in the village was more than the land available  for allotment. In order to resolve this difficulty he evolved  a via-media. He deprived some of the allottees of the part  of land allotted to them, and the appellant was one such  casu- alty. He allotted all such lands to the respondent and it is this  which  was the starting point of the trouble.  It  is, however,  significant  to note that before  this  order  was passed by the Consolidation Officer so far as the  appellant is  concerned she had already obtained a permanent Sanad  in respect of her lands from the Government of India.     Against  the  order of the  Consolidation  Officer,  the appellant preferred an appeal before the Assistant Director, Punjab & Haryana, Chandigarh. The appeal was dismissed  with an observation that he was bound by the remand order and the right  acquired  by the appellant by the Sanad  should  have been  brought  to  the notice when matter  was  disposed  of earlier  by  the Assistant Director, Patiala.  Against  this order  of the Assistant Director, the appellant preferred  a writ petition which was rejected by the High Court in limine with one word ’dismissed’ by order dated 14.4.1969.     After the rejection of the writ petition, the  appellant had  no other alternative and therefore instituted the  suit out  of which this appeal arises. Her case in the  suit  was that  it was impermissible for the Consolidation Officer  to adjust  the lands or take away any part of it  which  became her  absolute  property by virtue of the  Sanad  granted  on 29.4.1963.  However, she became unsuccessful in all  Courts. On  5.9.1975, the trial Court dismissed the suit. The  Addi- tional District 388 Judge  confirmed that judgment. The High Court of  Punjab  & Haryana   dismissed the Second Appeal by the judgment  dated 31.1.1983 which is now under appeal before us.     Learned  counsel for the appellant contended that  after the  Sanad  was granted to the appellant  on  29.4.1963  she became the absolute owner of the land. The land was given to her  in lieu of settlement of her claim of compensation  and the Sanad-specifically provided that all rights and interest in the property were transferred to the appellant under  the authority  of the President. It was, therefore, not open  to any  consolidation  authority to cancel this Sanad.  It  was also  contended that the Consolidation authorities  and  the civil  courts did not examine the legal consequences of  the Sanad  and the scope of Section 10, and without taking  that into consideration the allotment made was illegal and  could not be sustained.     The  other limb of the argument of learned  counsel  re- lates  to the question of res judicata on which ground  also the  appellant was nonsuited. It may be recalled the  appel-

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lant  being  aggrieved  by the order  of  the  Consolidation Officer  which was confirmed by the Assistant Director  Con- solidation  approached  the High Court in a  writ  petition. That writ petition was rejected in limine and therefore  the courts below held that the question of res judicata operates and  there was no scope for the civil court to go  into  the question  once  again.  It was argued that  the  High  Court committed an error since apparently the writ petition  filed by  the appellant was dismissed in limine and it  could  not operate  as  res  judicata since it was not  a  decision  on merits deciding anyone of the issues arising in the  litiga- tion.     Learned  counsel for the respondent, on the  other  hand contended that the allotment made in favour of the  respond- ent was very much before the allotment made in favour of the appellant. The allotment to the respondent was on 29.12.1959 and   whereas  the  allotment  to  the  appellant   was   on 29.12.1962. But unfortunately as there was no entry made  in the revenue record about the allotment tO the respondent. No land  was earmarked in the consolidation  proceedings  which ultimately  had  to be brought to the  notice  of  Assistant Director. The later remanded the matter with a direction  to the consolidation officer "to see that the first allottee is accommodated  first  and the later allottees who  have  been accommodated before the respondent shall not be given  their allotment."  Learned counsel contended that when this  order of  the  Assistant Director was not complied with,  the  re- spondent had no option but to approach the High Court for  a direction for 389 enforcement  of the said order. But learned counsel  had  to concede that even before the order of the Assistant Director by which he remanded the matter, the allotment in favour  of the  appellant had been converted into a permanent  transfer by a Sanad granted by the President.     The  main  argument of the learned counsel for  the  re- spondent  was that in view of the fact that  the  respondent was allotted earlier in 1959 whereas the allotment in favour of the appellant being in December 1962 and if there was  no adequate land available for allotment to the appellant,  the authorities  should find an alternative land somewhere  else but  the respondent could not be deprived of the land  which was  allotted  to him- He, however,  frankly  conceded  that there  is nothing on record to indicate that the  same  land which  was  allotted to the respondent was allotted  to  the appellant.  He,  however, said that it was a  case  of  over allotment  and the authorities were justified in taking  the land  proportionately from all allottees and  adjusting  all the allottees with the available lands.     From  all the facts and documents, one thing appears  to be clear that although certain allotment was made in  favour of  the respondent in 2959, he was not put in possession  of the allotted lands. It is also clear that the survey Nos. of lands  allotted in 1959 to the respondent are not  the  same survey Nos. allotted to the appellant in December, 1962.  It is further clear that the appellant was given possession  of those  properties allotted to her and even  permanent  Sanad was granted to her.     The  main question that arises for consideration  there- fore, is whether the lands given to the appellants by perma- nent  Sanad could be deprived of in the  consolidation  pro- ceedings  without  giving  them  adequate  alternate  lands. Section 10 of the Displaced Persons (Compensation & Rehabil- itation) Act of 1954 provides:               "10.  Where  any immovable property  has  been

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             leased  or allotted to a displaced  person  by               the Custodian under the conditions prescribed:               (a)  by the notification of the Government  of               Punjab in the Department of Rehabilitation No.               4891-S or 4892-S, dated the 8th July, 1949; or               (b)  by the notification of the Government  of               Patiala and               390               East Punjab States Union in the Department  of               Rehabilitation  No. 8R or 9R, dated  the  23rd               July,  1949,  and published  in  the  Official               Gazette  of that State, dated the 7th  August,               1949.               and such property is acquired under the provi-               sions  of this Act and forms part of the  com-               pensation pool, the displaced person shall, so               long  as  the property remains vested  in  the               Central  Government continue in possession  of               such property on the same conditions on  which               he  held the property immediately  before  the               date  of  the  acquisition,  and  the  Central               Government may, for the purpose of payment  of               compensation to such displaced person,  trans-               fer  to  him such property on such  terms  and               conditions as may be prescribed."     From this provisions, it will be clear that the  parties who  were  put in possession under initial  allotment  would continue to remain in possession even after its  acquisition by  the  Central Government. But it is open to  the  Central Government  for the purposes of payment of  compensation  to such displaced persons transfer to him such property on such terms  and conditions as may be prescribed. Apparently  this refers  to a permanent transfer in lieu of compensation.  It is  not in dispute that the appellants were the only  allot- tees  in  whose  favour  permanent  transfer  was  made   on 29.4.1963 and 15.6.1964 respectively.     A perusal of the terms of Sanad clearly indicate that it conveys absolute title and it could be cancelled only by the authority  which granted the Sanad. Sanad (Ex. p 2)  granted to the appellant on 29.4.1963 reads:               "The  President is hereby pleased to  transfer               the right, title and interest acquired by  the               Central  Government  in the said  property  to               Pujari  Bai  wife of Bihari  Lal  (hereinafter               referred to as the transferee) subject to  the               following terms and conditions."     It  was  perhaps for this reason, as contended  for  the appellant that after the Sanad was granted in favour of  the appellant,  the  respondent  went on  with  the  proceedings before  the  consolidation authorities and also  before  the authorities  under  the Displaced  Persons  (Compensation  & Rehabilitation) Act, 1964, but did not implead the appellant and only impleaded the other allottees who were not  granted Sanad till 391 then. Quite naturally, the authorities had no opportunity to examine the effects of the Sanad granted to the appellant.     Learned  counsel for the respondent next contended  that the consolidation proceedings had started when the Sanad was granted to the appellant on 29.4.1963 and Section 30 of  the East Punjab Holdings (Consolidation and Prevention of  Frag- mentation) Act, 1948 prohibits a transfer during the consol- idation proceedings.     We  do not think that Section 30 has any application  to the facts of the case.

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   Section  30 of the East Punjab  Holdings  (Consolidation and Prevention of Fragmentation) Act, 1948, provides:               "Sec. 30. Transfer of Property during consoli-               dation proceedings--After a notification under               sub-section  (1) of Section 14 has issued  and               during  the  pendency  of  the   consolidation               proceedings  no land owner or tenant having  a               fight  of occupancy upon whom the scheme  will               be binding shall have power without the  sanc-               tion of the Consolidation Officer to  transfer               or  otherwise  deal with any  portion  of  his               original  holding  or other tenancy so  as  to               affect  the rights of any other  landowner  or               tenant  having  a right of  occupancy  therein               under the scheme of consolidation."     Transfer  of  property referred to in  this  Section  is either  by a landowner or by a tenant, and it has no  refer- ence and indeed cannot have a reference to transfer of Sanad under  Section 10 of the Displaced Persons  (Compensation  & Rehabilitation)  Act  of 1954. The conferment of  fights  in lieu of compensation under Section 10 stands on a  different footing which could not be contemplated within the  language of Section 30 of the aforesaid Act. This contention advanced by learned counsel for the respondent is, therefore, reject- ed.     This  takes  us  to the question of  res  judicata.  The question is whether the suit of the appellant was barred  by res  judicata in view of the summary dismissal of  her  writ petition earlier. It is not disputed that the writ  petition filed  by the appellant against the order of  the  Assistant Consolidation  Officer was dismissed in limine.  This  order dated 14.4.1969 was passed by the Division Bench of Punjab & Haryana High Court. It was a one word order. The question or res 392 judicata  apparently arises when a controversy or  an  issue between  the parties has been heard and decided. This  Court in Workmen of Cochin Port Trust v. Board of Trustees of  the Cochin  Port Trust & Another, [1978] 3 SCR 97  1  considered this principle and observed (at 977):               "But  the technical rule of res  judicata  al-               though  a  wholesome rule  based  upon  public               policy, cannot be stretched too far to bar the               trial  of identical issues in a separate  pro-               ceedings  merely  on an  uncertain  assumption               that the issues must have been decided. It  is               not safe to extend the principle of res  judi-               cata  to such an extent so as to found  it  on               mere guess work. To illustrate our view point,               we  may take an example. Suppose a writ  peti-               tion  is filed in a High Court for grant of  a               writ of Certiorari to challenge some order  or               decision  on  several  grounds.  If  the  Writ               Petition  is  dismissed  after  contest  by  a               speaking  order obviously it will  operate  as               res judicata in any other proceeding, such as,               of  suit, Article 32 of Article  136  directed               from  the same order or decision. If the  Writ               Petition  is  dismissed by  a  speaking  order               either at the threshold or after contest, say,               only on the ground of laches or the availabil-               ity  of  an alternative remedy,  then  another               remedy  open in law either by way of  suit  or               any  other  proceeding obviously will  not  be               barred on the principle of res judicata."

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   It  thus becomes clear that when a writ  petition  after contest  is disposed of an merits by a speaking  order,  the question  decided  ,in that petition would  operate  as  res judicata, but not a dismissal in limine or dismissal on  the ground of laches or availability of alternative remedy.  The High  Court and the courts below, therefore, were not  right in  throwing out the suit of the appellant on the ground  of res judicata.     It  is, therefore, plain that all the three courts  have omitted  to  consider the material question,  that  is,  the impact of the grant of Sanad under Section 10 and its effect on the jurisdiction of the authorities under the  Consolida- tion  Act. The authorities under Consolidation Act  have  no jurisdiction  or  power  to modify or cancel  the  grant  of proprietary rights granted in the Sanad under Section 10.     In the connected Civil Appeal No. 6013 of 1983 the Sanad was also granted on 15.6.1964 in accordance with Section  10 and,  therefore,  the same principle applies  to  that  case also. 393     The  appeals  are therefore allowed.  The  judgment  and decree  passed by all the three courts below are  set  aside and  the suit filed in each case is decreed with costs.  The appellant  shall be entitled to costs in this  Court.  Costs quantified at Rs.5,000 in each of the two appeals. N.V.K.                                               Appeals allowed. 394