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CASE NO.: Appeal (civil)  4782 of 1996

PETITIONER: Dwarka Prasad Agarwal (D) by LRs. And Anr.               

RESPONDENT: Vs. B.D. Agarwal and Ors.                                            

DATE OF JUDGMENT: 07/07/2003

BENCH: CJI., S.B. Sinha, AR. Lakshmanan.

JUDGMENT:

J U D G M E N T

with C.A. No. 4783 of 1996  and W.P. (C) No. 527 of 1993

S.B. SINHA, J :

       Whether settlement of a private dispute between the parties to a writ  proceeding is permissible in law, is the prime question involved in these  batch of appeals which arise out of judgments and orders passed by Madhya  Pradesh High Court in M.P. No. 802 of 1992 and M.C.C. No. 477 of 1992  and the connected writ petition.  

       The factual matrix involved in these matters may be noticed in brief.   

       A partnership firm known as M/s. Dwarka Prasad Agarwal &  Brothers (The firm) was constituted with Dwarka Prasad Agarwal (since  deceased), Bishambhar Dayal Agarwal (since deceased), Mahesh Prasad  Aggarwal - all sons of Keshav Dev Agarwal and Ramesh Chandra Agarwal,  son of Dwarka Prasad Agarwal in the year 1972 as partners thereof.  Each  partner contributed towards the capital of the Firm in shares to the extent of  25%, 30%, 30% and 15% respectively.  Prior to the constitution of the Firm,  a newspaper known as ’Dainik Bhaskar’ was being published by Dwarka  Prasad Agarwal and his name was recorded in the Registrar of Newspapers  for India (for short ’RNI’).  The said Dwarka Prasad Agarwal was the karta  of a larger HUF consisting of himself and his partners.  He had two wives,  namely, Kasturidevi and Kishoridevi.  Allegedly, the firm transferred the  business of publication of Dainik Bhaskar at Gwalior to a newly  incorporated company, M/s. Bhaskar Publication and Allied Industries Pvt.  Ltd. of which Dwarka Prasad Agarwal was the lifetime Managing Director  and Chairman and therein Bishambhar Dayal Agarwal and his son, Ramesh  Chandra Agarwal were shareholders and directors.  A printing press of  which Dwarka Prasad Agarwal was the owner is said to have been  transferred to the said company for the purpose of printing of the  aforementioned newspaper.  According to the appellants, in the Annual  Reports of the RNI, the name of the said firm was shown as the owner of the  said newspaper.  It is not disputed that in the year 1982, Dwarka Prasad  Agarwal suffered from a paralytic attack and was unable to attend to  business actively.

       It is alleged that Ramesh Chandra Agarwal filed a Declaration on or  about 13.10.84 along with an authority letter dated 10.1.83 from Dwarka  Prasad Agarwal in respect of publication of Dainik Bhaskar at Indore for  admitting him to be the owner of the newspaper and the company as a  lessee.  Certain documents were allegedly created on 13th March, 1985 by  Ramesh Chandra Agarwal for the said purpose; one of them, being an

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Agreement of Sale alleged to have been entered by and between the Firm  and a company called M/s. Writers & Publishers Pvt. Ltd., the genuineness  or otherwise of which was the subject matter of a suit being suit No. 57A of  1988.  Another document also came to be executed on the same day, the  genuineness whereof was also disputed, is an alleged deed of partition/  family settlement of the HUF; in terms whereof the firm’s assets, several  other properties, fixed deposits, money and business including those situated  at Bombay, Delhi, Raipur, Indore, were divided between Dwarka Prasad  Agarwal, Bishambhar Dayal Agarwal, Mahesh Prasad Agarwal and Ramesh  Chandra Agarwal.  According to the appellant, Dwarka Prasad Agarwal  never signed the said deed of partition/ family settlement nor was it acted  upon and in fact was questioned as forged and non-existent by Bishambhar  Dayal Agarwal in a proceeding before District Magistrate, Jabalpur and the  same was also the subject matter of suit No. 57A of 1988 pending in the  court of District Judge, Bhopal.  Several other suits were filed by the parties  at several places viz. Jabalpur, Bhopal, Raipur, Gwalior, etc.  Several  proceedings were also initiated before different forums with regard to  publication of the said newspapers at different places.  Some writ petitions  were also filed by the parties before the High Court.  Some proceedings by  way of Special Leave Application were also filed before this Court.

       It may not be necessary to delve deep into the effect and purport of the  said disputes for answering the issue involved in these matters, except a few.                  It may, however, be noticed that Bishambhar Dayal Agarwal,  questioning the authentication made by the Additional District Magistrate,  Jabalpur of the Declaration filed by Sudhir Agarwal, son of Ramesh  Chandra Agarwal for newspaper ’Nav Bhaskar’ as regard its publication  from Jabalpur as also a purported order passed thereupon by the said  authority on 3.12.91 filed a writ petition before the Madhya Pradesh High  Court.  Dwarka Prasad Agarwal was made a proforma respondent herein.   The said writ petition was marked as MP No. 802 of 1992 wherein the  following reliefs  were claimed:

"(i)    That the Hon’ble Court be pleased to declare  by an appropriate writ, order or direction  that the power conferred on the District  Magistrate/ Additional District Magistrate  under Section 4 and 6 of the Press and  Registration of Books Act, 1867, in case of  declarations submitted for same or similar  titles as ultra vires to the petitioner’s right  under Article 14, 19(1)(a) and (g) of the  Constitution of India.

(ii)    That the Hon’ble Court be further pleased to  declare by an appropriate writ that if a  power is conferred on District Magistrate/  Additional District Magistrate to grant  declaration of title of same or similar nature,  such a power cannot be exercised by the  District Magistrate/ Additional District  Magistrate till an Appellate Authority is  constituted to be able to oversee and review  the exercise of powers by the District  Magistrate/ Additional District Magistrate.   The non-provision of Appellate power  violates the petitioner’s fundamental rights  under Article 14 and 19(1)(a) and (g) of the  Constitution of India.

(iii)   That the Hon’ble Court be further pleased to  quash and set aside the declaration dated  11.10.1991 approved by the Additional  District Magistrate, Jabalpur, of the title Nav

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Bhaskar submitted by publisher Sudhir  Agarwal as void, illegal and contrary to law.

(iii-a)  The Hon’ble High Court may be pleased to  quash and set aside the declaration dated  14.2.1992 Annexure P.27 authenticated by  the Additional District Magistrate, Jabalpur  in favour of the respondent No. 1 Sudhir  Agarwal for printing and publishing  newspaper under the name and style of Nav  Bhaskar as void, illegal and non-set in law.  

(iv)    That the Hon’ble Court be further pleased to  set aside and quash the order dated  3.12.1991 passed by the Additional District  Magistrate, Jabalpur, on an application/  objection made by the petitioner under  Section 8-B of the Press and Registration of  Books Act, 1867 as void, illegal and  contrary to law.

(v)     That the Hon’ble Court may be further  pleased to prohibit and restrain the  respondent Sudhir Agarwal and his father  Shri Ramesh Chandra Agarwal from using  the title Nav Bhaskar and to restrain the  A.D.M. Jabalpur from granting any such or  similar title to Shri Sudhir Agarwal or Shri  Ramesh Chandra Agarwal.

(vi)    Any other appropriate writ, order or  direction which the Hon’ble Court deems  just and proper may also be passed in the  facts and circumstances of the case as also in  the interest of justice.

(vii)   Cost of proceedings of this petition may also  be awarded in favour of the petitioner."

       During pendency of the said writ proceedings, on 29.6.92 the  petitioner therein, Ramesh Chandra Agarwal son of Dwarka Prasad Agarwal  and Mahesh Prasad Agarwal along with their sons Kailash, Sudhir and  Sanjay purported to have entered into a deed of settlement.  Dwarka Prasad  Agarwal admittedly was a proforma respondent therein and although his  rights as partner were directly affected thereby he was neither a party to the  said settlement nor a signatory to the said deed.  The said purported  agreement was filed on the same day before the Madhya Pradesh High Court  by the petitioner therein alleging that he and the contesting respondents had  reached a full and final settlement of ’the disputes raised in the petition and  other connected matters’ pending before various courts and bodies and the  writ petition be disposed of in terms of the said purported comprehensive  agreement.  The said settlement was accepted and the writ petition was  disposed of in terms thereof on 29.6.1992 which was also the date of filing  of the compromise memo.  The said order dated 29.6.92 is the subject matter  of Civil Appeal No. 4782 of 1996.   

       Pursuant to or in furtherance of the said purported compromise, RNI  altered the name of owner of title Dainik Bhaskar in his Register from the  Firm to M/s. Writers on or about 3.9.1992 stating:

"This is to state that in accordance with the notice  issued on the above subject in the matter of  ownership of Dainik Bhaskar, as per the decision  in Case No. 1182/92 dated 29.6.92 of the High

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Court of Madhya Pradesh, at Jabalpur and  agreement dated 19.6.92 M/s. Writer & Publishers  Pvt. Ltd., Bhopal, has become the owner of Dainik  Bhaskar.

You are, therefore, requested that if you have any  objection to this decision then you may approach  the High Court at Jabalpur."

       Dwarka Prasad Agarwal having come to learn the said order of RNI  dated 3.9.1992 filed an application for review of the order dated 29.6.1992  passed by the High Court which was marked as MCC No. 477 of 1992.  The  said review petition was dismissed by an order dated 13.11.1992 and the  same is the subject matter of Civil Appeal No. 4783 of 1996.   

       The High Court in its order dated 13.11.92 refusing to review its  earlier order dated 3.9.92 inter alia held:

(i)     The agreement in question is a lawful one. (ii)    As Dwarka Prasad Agarwal was not a signatory thereto, he was not  bound thereby. (iii)   The order recording compromise was legal as no other party  including the learned advocate of Dwarka Prasad Agarwal objected  thereto.   (iv)    No writ was issued by the High Court in terms of the said order  against the Additional District Magistrate, Jabalpur or any other  authority.

       Pursuant to or in furtherance of the said order dated 29.6.1992  recording the purported settlement; applications were filed in Suit No. 74A  of 1987 and 75A of 1987 in Bhopal by M/s. Writers and Ramesh Chandra  Agarwal for withdrawal thereof, whereupon the suits were dismissed.   Bishambhar Dayal Agarwal also, who had filed suit No. 57A of 1988,  moved an application to the effect that pursuant to the compromise the suit  be dismissed.  This plea was also accepted.

       Dwarka Prasad Agarwal filed Writ Petition No. 527 of 1993 in this  Court questioning the aforementioned order dated 3.9.92 passed by RNI  wherein inter alia the following reliefs were prayed for:

"(a)issue writ, order or direction quashing the  order dated 3rd September, 1992 whereby the  Registrar, Newspapers has changed the name of  the owner of the title Dainik Bhaskar from M/s.  D.P. Agarwal and Brothers to M/s. Writers and  Publishers Private Limited;

(b)     issue writ, order or direction directing  Respondent No. 1 and 2 not to allow  Respondent No. 7 to use the title Dainik  Bhaskar for its publication;

(c)     issue writ, order or direction directing the  Respondents not to publish newspaper Dainik  Bhaskar under the alleged title of Respondent  No. 7;

(d)     issue writ, order or direction directing the  Respondent No. 2 to exercise its authority not  to allow Respondents No. 3 to 7 to publish  newspaper Dainik Bhaskar under the title of  writers and publishers Private Limited;

(e)     issue writ, order or direction directing the

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Respondent No. 8 not to allow the Respondents  No. 3 to 7 to publish newspaper Dainik Bhaskar  in contravention of the provisions of the Press  and Registration of Books Act, 1867; and

(f)     pass such other and further orders as may be  deemed fit and proper in the facts and  circumstances of the case."

       Dwarka Prasad Agarwal died during the pendency of these  proceedings.   

Both the wives of the said Dwarka Prasad Agarwal applied for  substitution of their names in place of the deceased.    The rival contentions  on substitution by the two wives of Late Dwarka Prasad Agarwal came to be  considered by this Court.  Kishori Devi pressed her application.  Kasturi  Devi, however, was not sure that, she, having regard to her stand taken in the  litigation, would be able to defend the action on behalf of her husband.   Upon consideration of the said question, this Court directed Kasturi Devi to  be impleaded as a respondent in the proceeding whereas Kishori Devi and  her daughters Hemlata and Anuradha were directed to be substituted in place  of Late Dwarka Prasad Agarwal.  While passing the said order, however, an  observation was made that the said question shall be finally decided at the  time of hearing.  We may, however notice that in the said proceedings for  substitution, Ramesh Chandra Agarwal filed a counter affidavit calling Smt.  Kishori Devi a concubine of Dwarka Prasad Agarwal.  Keeping in view the  stand taken by the parties before us we have no hesitation in holding that this  Court rightly substituted Kishori Devi and her daughters Hemlata and  Anuradha in place of Late Dwarka Prasad Agarwal.

       Mr. Sunil Gupta, the learned senior counsel appearing on behalf of the  appellants, as also the writ petitioner would submit that the impugned orders  passed by the High Court are ex facie bad, illegal as by reason thereof the  right title interest of Late Dwarka Prasad Agarwal, as specified hereunder,  were directly and adversely affected although he was not a party or signatory  to the said agreement.   

(i)     By reason of the said purported compromise, the firm was sought  to be dissolved of which Dwarka Prasad Agarwal was a partner. (ii)    The firm’s assets were to be sold as per the alleged agreement  dated 13.3.85 and divided as per alleged partition deed of 13.4.85  which had not been signed and accepted by Dwarka Parsad  Agarwal, karta of HUF and the genuineness whereof was also the   subject matter of dispute. (iii)   The properties of the aforementioned firm, including the goodwill  and ownership of Dainik Bhaskar over different territories were  distributed by M/s. Writers Ltd. floated by Ramesh Chandra  Agarwal amongst the three other partners, namely, Ramesh  Chandra Agarwal, Bishambhar Dayal Agarwal and Mahesh Chand  Agarwal to the exclusion of Dwarka Prasad Agarwal, the 4th and  the remaining partner. (iv)    Although several suits, namely Suit No. 74A of 1987, 75A of  1987, 57A of 1988, 22A of 1988, 99A of 1991 and Writ Petition,  MP No. 802 of 1992 were filed by the parties, the disputes  involved therein were sought to be resolved thereby which was  impermissible in law.

       The learned counsel would contend that the High Court committed a  serious error insofar as it failed to notice that Dwarka Prasad Agarwal could  not have any knowledge of the said unjust agreement, whence the same was  accepted.  Although he had not instructed any lawyer to appear on his behalf  and merely one blank Vakalatnama executed by him bona fide was used  therefor and, thus, there was no question of his taking part in the proceeding  for acceptance of the purported settlement.  In any event as his lawyer  admittedly recorded merely ’no instructions’ in the said proceeding, the

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same could not have been treated as a consent/ no objection to the recording  of the compromise on his behalf and in that view of the matter the  observations made by the High Court that the agreement was not opposed on  behalf of the parties must held to be per se unreasonable and unjustified.   

       Our attention, in this regard, has been drawn to various disputed  factual aspects of the matter for the purpose of showing that several mis- representation of fact had been made in the aforementioned agreement of  settlement and the application dated 29.6.92 filed for recording the  compromise before the High Court.   

       The learned counsel would further contend that the compromise was,  in any event, not lawful as thereby right of ownership of an existing title in  newspaper was sought to be determined in violation of Section 19B, the  proviso appended to Section 6 and Section 8B (ii) of the Press and  Registration of Books Act, 1867 as in terms thereof the authorities were  under a statutory obligation to preserve and protect the right of the firm as  regard ownership of title Dainik Bhaskar and to prevent any person from  using the same without the authorization of the firm.

       The goodwill of a firm, the learned counsel would urge, would also be  a subject matter of division of assets of partnership firm irrespective of the  fact as to whether the firm had thence been carrying on business or not.   Furthermore, as by reason of the said compromise, transfers were sought to  be made without registering the same in terms of Indian Registration Act,  the same was illegal.  It was further submitted that impact of the impugned  order can be noticed from the fact that by reason of the said purported  consent order dated 29.6.92, even the RNI also found himself compelled to  forgo his statutory obligation and found itself to be bound to alter the name  of the owner of the title in the register maintained by the said authority in  terms of Section 19B of the Act from M/s D.P. Agarwal & Bros. to M/s  Writers & Publishers Pvt. Ltd.  Recording of the said compromise, it was  urged, must be held to amount to practising of fraud on the court by the  parties to the agreement, as thereby they had achieved their purpose  indirectly which law prohibits them achieving directly and furthermore, as a  large number of proceedings in relation to the disputes amongst the parties  were pending before different forums, they could not have been given a go  bye by reason thereof.

       The learned counsel would contend that public law remedy by way of  a writ petition could not have been taken recourse to for resolution of a  private dispute.  It was submitted that in that view of the matter, the  observations of the High Court that its order did not amount to issuance of a  writ by the Court against any of the parties must be held to be illegal and  without jurisdiction.

       Drawing our attention to the applications for withdrawal of the suits in  terms of the said compromise petition, the learned counsel would submit that  the order accepting the compromise was misused inasmuch as the said suits  were purported to have been withdrawn on the ground that the same was a  necessary fallout of the judgment of the High Court, which in effect and  substance, it was not.

       On the writ petition filed by Late Dwarka Prasad Agarwal under  Article 32 of the Constitution of India in this Court, the learned counsel  would submit that having regard to the fact that the official respondents had  changed the entries in the register maintained under the Act is a clear pointer  to show as to how the order of the High Court was misunderstood by the  statutory authorities.  It was submitted that in terms of the provisions of the  Press and Registration of Books Act, 1867,  late Dwarka Prasad Agarwal  had acquired various rights coupled with the common law right as a partner  of the partnership firm which could not have been taken away only with his  consent or by operation of law.  According to the learned counsel, in terms  of the provisions of the said Act, it is one thing to say that somebody is the  owner of the title in relation to the newspaper in question and it is another

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thing that somebody is the printer and publisher thereof.

       As regard maintainability of the writ petition, Mr. Gupta vehemently  urged that the cause of action therefor had arisen in view of illegal action on  the part of the official respondents resulting from misuse of judicial process.   He would urge that publication of a newspaper is a fundamental right in  terms of Article 19(1) of the Constitution of India and as the action of the  official respondents directly resulted in infringement of the right of the said  writ petitioners.  Reliance, in this connection, has been placed on Express  Newspapers Pvt. Ltd. Vs. Union of India and Others [1986) 1 SCC 133] and  Jhumman Singh and Others Vs. Central Board of Investigation and Others  [(1995) 3 SCC 420].

       Dr. A.M. Singhvi, learned senior counsel appearing on behalf of  respondent Sudhir Kumar Agarwal, on the other hand, would submit that as  by reason of the order recording the settlement entered into by and between  the parties thereto, by the High Court, the right of Dwarka Prasad Agarwal  was not affected as he was not bound thereby and further in view of the fact  that no writ was issued against the A.D.M. Jabalpur, the question of  appellants’ being prejudiced by reason of the impugned order would not  arise.  Drawing our attention to the order dated 13.11.1992 whereby and  whereunder the High Court refused to review its order dated 29.6.1992, the  learned counsel would contend that the correct legal position has been  clarified by the High Court, Late Dwarka Prasad Agarwal could have taken  recourse to appropriate legal proceeding to protect his own interest and, thus,  the impugned orders need not be interfered with.  As regard the writ petition  filed by Shri Bishambhar Dayal Agarwal, Dr. Singhvi would contend that  from a perusal thereof it would appear that main prayer against the A.D.M.,  Jabalpur, was dependent upon the authenticity of the declaration made by  one of the respondents therein and in view of the fact that the parties had  buried their private disputes, at least prayers (3) and  (4) could be granted by  the High Court, more so when prayers (1) and (2) thereof had not been  pressed.

       Dr. Singhvi would urge that having regard to the provisions contained  in Section 5(5) of the said Act, the writ petition also became infructuous and,  thus, there was no occasion for the High Court to issue any writ.  Referring  to certain documents, the learned counsel would argue that as prior to the  filing of the writ petition, Dwarka Prasad Agarwal had given up his own  right in the newspaper and acknowledged the right of his respondents and  the company; he had no locus standi to prefer appeals against the impugned  orders of High Court or file the writ petition.  As regard the effect of the  consent order the learned counsel relied upon the decision of this Court in  Salkia Businessmen’s Association and Others Vs. Howrah Municipal  Corporation and Others [(2001) 6 SCC 688].

       Mr. P.P. Rao, the learned senior counsel appearing on behalf of Smt.  Kasturi Devi, inter alia, would submit that the writ petition filed before this  Court by Dwarka Prasad Agarwal (since deceased) was not maintainable.   Mr. Rao, would contend that having regard to the prayers contained in  clauses  (1) and (2) thereof, there cannot be any doubt whatsoever that the  writ petition before the High Court was maintainable and only because at a  later stage the private dispute between the parties was resolved, the same by  itself would not lead to a conclusion that the writ petition ceased to be so.   Mr. Rao would submit that legality or otherwise of the said compromise  cannot be held to have been questioned by Late Dwarka Prasad Agarwal as  no illegality in relation thereto was pointed out by anybody.

       Mr. Shanti Bhushan, learned Senior Counsel appearing on behalf of  Mahesh Agarwal, however, conceded that the order dated 29.6.1992 of the  High Court based on compromise must be set aside and consequently prayer  (a) in the writ petition may also be granted.  However, according to the  learned counsel the petitioner is not entitled to any other relief.   

       Several questions of  importance, as noticed hereinbefore, have arisen

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for consideration in these appeals and the writ petition.   

       A writ petition is filed in public law remedy.  The High Court while  exercising a power of judicial review is concerned with illegality,  irrationality and procedural impropriety of an order passed by the State or a  statutory authority.  Remedy under Article 226 of the Constitution of India  cannot be invoked for resolution of a private law dispute as contra  distinguished from a dispute involving public law character.   It is also well- settled that a writ remedy is not available for resolution of a property or a  title dispute.  Indisputably, a large number of private disputes between the  parties and in particular the question as to whether any deed of transfer was  effected in favour of M/s Writer & Publishers Pvt. Ltd. as also whether a  partition or a family settlement was arrived or not, were pending  adjudication before the Civil Courts of competent jurisdiction.  The reliefs  sought for in the writ petition primarily revolved round the order of  authentication of the declaration made by one of the respondents in terms of  the provisions of the said Act.  The writ petition, in the factual matrix  involved in the matter, could have been held to be maintainable only for that  purpose and no other.   

       An agreement recording terms of settlement between the parties on  their private dispute was executed on 29.6.1992.  The application for  disposal of the writ petition in terms of the said agreement as also the order  of the High Court in M.P. No.802 of 1992 was passed on the same day.  The  writ petition was not ready for hearing on the said date.  Admittedly, Dwarka  Prasad Agarwal was not a signatory to the said agreement.  He was also not  put on notice there-about.  Assuming that he had engaged an Advocate,  keeping in view the fact that he was a proforma respondent therein, the said  learned Advocate was merely required to watch the proceedings as no relief  had been claimed against him.  The question of the learned advocate of  Dwarka Prasad Agarwal not raising any objection as regard legality or  otherwise of the said agreement dated 29.6.1992 neither directly nor  indirectly arose for consideration before the High Court.  He also did not  make any submission as regard the lawfulness or otherwise of the said  compromise.  He merely stated that he had no instruction in the matter.  In  that view of the matter, it was obligatory on the part of the High Court to  issue notice to Late Dwarka Prasad Agarwal in respect thereof or to allow  sufficient time to the learned Advocate to obtain proper and adequate  instructions.           In the aforementioned premise, the High Court was furthermore  required to apply its own mind for the purpose of arriving at a finding as to  whether it, in public law remedy, could record the compromise and dispose  of the said writ petition in terms thereof.  The order dated 29.6.1992 passed  in M.P. No.280 of 1992 was purported to have been clarified by the High  Court in its order dated 13.11.1992 in the review petition being MCC No.  477 of 1977.  The said order clearly demonstrates a total non-application of  mind on the part of the High Court.

       Several issues of grave importance were required to be addressed by  the High Court.  The High Court sought to take a short cut in holding that  the said compromise was not binding upon Dwarka Prasad Agarwal and  thereby no writ was issued.  The consequence of recording of the said   compromise was tell-tale.  Not only pursuant thereto or in furtherance  thereof  the Registrar of Newspapers, New Delhi, passed an order dated  3.9.1992; it was construed to be a judgment of the High Court which had  been taken aid of by the respondents herein for the purpose of withdrawal of  suits wherein various disputed questions of facts and law including the  genuineness or otherwise of the agreements were in question and required  adjudication.  The High Court was also required to address itself, more so  while disposing of the review application, as to whether the purported  settlement on the grounds raised by the appellants herein, was a lawful one.   Without any application of mind, the High Court proceeded to hold that the  agreement was lawful.  It did not pose unto itself the right question so as to  enable himself to arrive at a finding of fact resulting in correct answer

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thereto and, thus, the same would amount to a misdirection in law.  While  doing so, the High Court did not take into consideration the provisions of the  Registration Act or the said Act and, in particular, Section 19B, proviso  appended to Section 6 and Section 8-B (ii) of the Press & Registration of  Books Act, 1867.

       The High Court also failed and/or neglected to take into consideration  the fact that the compromise having been entered into by and between the  three out of  four partners could not have been termed as settlement of all  disputes and in that view of the matter no compromise could have been  recorded by it.  The effect of the order dated 29.6.1992 recording the  settlement was brought to the notice of the High Court, still it failed to  rectify the mistake committed by it.  The effect of the said order was grave.   It was found to be enforceable.  It was construed to be an order of the High  Court, required to be the implemented by the Courts and the statutory  authorities.

       In Salkia Businessman’s Association (supra), this Court observed: "8. We have carefully considered the submissions  of the learned Senior Counsel on either side. The  learned Single Judge as well as the Division Bench  of the High Court have not only oversimplified the  matter but seem to have gone on an errand, carried  away by some need to balance hypothetical public  interest, when the real and only question to be  considered was as to whether the respondent  Authorities are bound by the orders passed by the  Court on the basis of the compromise  memorandum and whether the proposed move on  their part did not constitute flagrant violation of the  orders of the Court - very much binding on both  the parties. The High Court failed to do justice to  its own orders. If courts are not to honour and  implement their own orders, and encourage party  litigants - be they public authorities, to invent  methods of their own to short-circuit and give a  go-by to the obligations and liabilities incurred by  them under orders of the court - the rule of law  will certainly become a casualty in the process - a  costly consequence to be zealously averted by all  and at any rate by the highest courts in the States  in the country. It does not, in our view, require any  extraordinary exercise to hold that the  memorandum and terms of the compromise in this  case became part of the orders of the High Court  itself when the earlier writ petition was finally  disposed of on 13-2-1991 in the terms noticed  supra, notwithstanding that there was no verbatim  reproduction of the same in the order. The orders  passed in this regard admit of no doubt or give any  scope for controversy. While so, it is beyond one’s  comprehension as to how it could have been  viewed as a matter of mere contract between the  parties and under that pretext absolve itself of the  responsibility to enforce it, except by doing  violence to the terms thereof in letter and spirit. As  long as the earlier order dated 13-2-1991 stood, it  was not permissible to go behind the same to  ascertain the substance of it or nature of  compliance when the manner, mode and place of  compliance had already been stipulated with  meticulous care and detail in the order itself. The  said decision was also not made to depend upon  any contingencies beyond the control of parties in  the earlier proceedings."

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       We may, however, hasten to add that we do not intend to put a seal of  our approval to those observations but only wish to point out that as to how  courts or the statutory authority may construe a consent order.

       In terms of Section 141 of the Code of Civil Procedure, the provisions  thereof are not applicable in a writ proceeding.  No provision of the Code of  Civil Procedure has been made applicable in terms of the rules framed by the  High Court of Judicature at Nagpur dated 25.9.1951 framed under Article  225 of the Constitution of India.  In any event the applicability of the  provisions of the Code of Civil Procedure, if any, would be only with regard  to the procedural and machinery provisions contained therein but thereby no  new right could be created.  Even if the provisions of Order 23, Rule 3 of the  Code of Civil Procedure and/or  principles analogous thereto are held to be  applicable in a writ proceeding, the Court cannot be permitted to record a  purported compromise in a casual manner.   It was suo motu  required to  address itself to the issue as to whether the compromise was a lawful one  and, thus, had any jurisdiction to entertain the same.  It may be true, as has  been contended by Mr. Rao, that the writ petition was maintainable at the  threshold.  But once it is held that by reason of the purported settlement  between the private parties, the High Court was not required to issue any  writ, it could only either permit the petitioner to withdraw the writ petition  and dismiss the same as having become infructuous.  The High Court  derives its jurisdiction in terms of Article 226 of the Constitution of India, if  an occasion arises therefor, to make judicial review of the order passed by a  statutory authority.  It is beyond any cavil that no writ can be issued if the  disputes involve private law character.  The writ court has also no  jurisdiction to determine an issue on private dispute over a property or right  under a partnership.  While purporting to record a compromise, the writ  court cannot enlarge its jurisdiction by directing that the suits pending in  different courts filed or different causes of action would also stand  compromised.  By reason thereof the writ court would be entrenching upon  the jurisdiction of the civil court indirectly which it could not do directly.   For the purpose of granting permission even for withdrawal of suit in terms  of Order 23, Rule 1 of the Code of Civil Procedure, the civil courts  themselves were required to apply their mind as to whether having regard to  the dispute between the parties, a case therefor has been made out or not.   The civil court is required to act on its own and not on the basis of any  direction of any other court determining a totally foreign issue.

       Furthermore, a writ court can pass an effective order provided it has  jurisdiction in relation thereto.  With the enlargement of the power of the  court recording compromise in view of the Code of Civil Procedure  (Amendment) Act, 1976, the responsibility and duty of the court also has  increased.  By reason of Order 23, Rule 3 of the Code of Civil Procedure, a  party can challenge the legality of the compromise only before the same  court and in that view of the matter the court was enjoined with a solemn  duty to decide such controversy in a lawful manner.  A question as to  whether a compromise is void or voidable under the Indian Contract Act or  any other law for the time being in force, would have, thus, to be determined  by the court itself.  Once it is held that the agreement or the compromise was  fraudulent, the same per se would be unlawful and the court is required to  declare the same as such.   

       It is now well-settled that an order passed by a court without  jurisdiction is a nullity.  Any order passed or action taken pursuant thereto   or in furtherance thereof would also be nullities.  In the instant case, as the  High Court did not have any jurisdiction to record the compromise for the  reasons stated hereinbefore and in particular as no writ was required to be  issued having regard to the fact that public law remedy could not have been  resorted to, the impugned  orders must be held to be illegal and without  jurisdiction and are liable to be set aside.  All orders and actions taken  pursuant to or in furtherance thereof must also be declared wholly illegal and  without jurisdiction and consequently are liable to be set aside.  They are  declared as such.  

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There is another aspect of the matter which must also be taken notice  of.  A party cannot be made to suffer adversely either indirectly or directly  by reason of an order passed by any court of law which is not binding on  him.  The very basis upon which a judicial process can be resorted to is  reasonableness and fairness in a  trial.  Under our Constitution as also the  International Treaties and Conventions, the right to get a fair trial is a basic  fundamental /human right.  Any procedure which comes in the way of a  party in getting a fair trial would be violative of Article 14 of the  Constitution of India.  Right to a fair trial by an independent and impartial  Tribunal is part of Article 6(1) of the European Convention for the  Protection of Human Rights and Fundamental Freedoms 1950 (See Clark  (Procurator Fiscal, Kirkcaldy) v Kelly [2003] 1 All ER 1106).     Furthermore, even if the Petitioner herein had filed a writ petition before the  High Court in terms of Article 226 of the Constitution of India, the same  would not have been entertained as the impugned order had been passed  consequent to and in furtherance of the purported consent order passed by  the High Court.  Ordinarily, the High Court would not have issued a writ of  certiorari for quashing its own order.  Even in that view of the matter too, it  is apposite that this petition under Article 32 should be entertained.

       We may, however, hasten to add that as at present advised we do not  intend to enter into the contention of the petitioners  that their fundamental  right under Article 19 of the Constitution of India had been infringed.  This  Court would have entered into the question, if the facts were undisputed or  admitted.  The question as regard infringement of fundamental right and that  too under Article 19 of the Constitution of  India cannot be gone into when  the facts are disputed.  Whether Dwarka Prasad Agarwal and consequently  the substituted petitioners are owners of the newspapers and if so to what  extent being disputed, it cannot be said, that by reason of the impugned order  dated 3.9.1992 passed by the first respondent herein alone, the fundamental  right of the petitioners under Article 19 had been infringed.   

We are, therefore, of the opinion that the interest of justice would be  sub-served if the appeals and the writ petition are allowed and the impugned  orders dated 26.9.1992 and 13.11.1992 passed by the High Court as also the  order dated 3.9.1992 passed by the first Respondent, Registrar, Newspapers  for India, are quashed.  All action taken and all orders passed by the  statutory authorites and the civil courts as referred to hereinbefore shall also  stand quashed.    As a logical corollary to our order, it must also be held that  the writ petition filed by Late Bishambhar Dayal Agarwal does not servive  and must, therefore, be dismissed.  The consequence of this order would be  that the parties shall be relegated to the same position in which they were  immediately prior to the passing of the order dated 26.9.1992.  All parties,  statutory authorities and courts including the civil courts are directed to act  accordingly.   

These appeals and writ petition are disposed of accordingly with  costs.  Counsel’s fee assessed at Rs.25,000/- (Rupees twenty five thousand  only).