P L D 1980 Supreme Court 1 (PLP)

KARAM ELAHEE CHAUHAN, J.-The dispute in this case is about some area of Urban Agricultural land situated in village Nawan Shahpur within the municipal limits of Gujrat City and described more fully in the writ petition from which present petitions for leave to appeal have been filed. It is the case of respondent Amanullah Qureshi (the writ petitioner) that a temporary allotment of this land was made in the year 1960 to him alongwith his two brothers Inamullah and Ibrahimullah. A proposal for its confirmation and a regular allotment was entered in favour of Assanullah Qureshi at Khata No. 4 of R. L. II register on 28-3-1966. The confirmation of that land, however, could not get through because as per notification dated 19-1-1970, the land was declared as a "building site" of which a note was made on the aforesaid Khata of the said respondent on 24-2-1971.

2. Amanullah Qureshi and his other relations challenged that declaration/notification by means of Writ Petition No. 269-R/70 which was accepted by High Court on 20-4-1973 and the aforesaid notification was held to be without lawful authority. It may be mentioned that during the pendency of that writ petition the High Court on 11-3-1970 passed an order directing maintenance of status quo meanwhile.

3. Coincidently by means of a notification dated 16-5-1973, the Chief Settlement Commissioner had placed a ban on the allotment of the urban land with the result that Amanullah Qureshi could not reap the benefit of the declaration obtained by him from the High Court in the above mentioned earlier writ petition. The validity of that ban was then challenged by means of a Writ Petition No. 894-R/L3 which was accepted. The present petitioners in their written statement pointed out that as a matter of fast similar writ petition being Writ Petition 566-R/73 was filed by Amanullan Qureshi as well, in which an interim order was passed on 1-8-1973 copy whereof was annexed with the aforesaid written statement as Annex R./E. Consequently the aforesaid ban was then withdrawn by the Chief Settlement Commissioner by a notification dated 22-9-1976, wherein it was declared that "subsisting proposals" of urban agricultural land should be confirmed. In that connection it appears that the Government had earlier called for a list of "subsisting proposals". The requisite information was supplied by the Deputy Commissioner, Gujrat (exact .date not given) duly showing the name of Amanullah Qureshi in the list at Serial No.

24. However, it appears that the land in dispute on 10-1-1972 had been allotted by the learned Additional Settlement Commissioner (Land) Gujrat, in different lots to -(if they can be so termed for facility of reference-the vendors/petitioners, who later on sold the same to the other petitioners) herein called as subsequent purchasers.

4. At that juncture Amanullah Qureshi respondent filed a constitution petition being Writ Petition No. 539-R/78 challenging the aforesaid order of the learned Additional Settlement Commissioner making pleadings on the lines mentioned hereinafter. The writ petition was accepted by a learned Single Judge by means of his judgment and order dated 10-7-1979. Actually there were two other similar writ petitions namely Writ Petition No. 539-R/78 and Writ Petition No. 865-R/78 on the same subject. All these three petitions were heard together and by quashing the orders impugned therein the case has been remanded to the officers duly qualified under section 2(2) of the Evacuee Property and Displaced Persons (Laws Repeal) Act (XV of 1975) to deal with the same after examining whether concerned petitioners (vendors) had obtained the allotment by fraud or misrepresentation. It has been observed in the judgment that if the finding on the subject hereinbefore mentioned was in favour of Amanullah Qureshi then the earlier "proposaC' in his favour can be given effect to in preference to the original vendors and subsequent purchasers from them. The petitioners some of whom are original vendors and the others as their subsequent vendees, have come up in a petition for leave to appeal against the same to this Court with regard to judgments and orders in Writ Petition No. 539-R/78 and Writ Petition No. 1433-R/78.

5. The first point argued by the learned counsel for the petitioners was that there was no plea of fraud or misrepresentation in the writ petition filed by Amanullah Qureshi and therefore the High Court was not justified to take notice of any such submission or to remand the case for their adjudication. Even if any petition, it was argued, contained any such or similar averments the mere raising of these pleas was no reason by itself to straightaway quash an order impugned on those grounds. An order could be quashed if it was without lawful authority and not merely because it was pleaded to be so by a suitor. The order of the High Court, it was argued proceeded (to so put it) in this way that since the writ petitioner says that allotment by vendors was fraudulently procured therefore it was being quashed and case was being remanded for fresh decision on those pleadings. It was argued that this could not have been done. The principle of law advanced cannot be disputed, but we must say that if carefully examined the order of the High Court did not suffer from any such attribute which is being assigned to it as we shall presenty explain.

6. In this respect we need first refer to para 10 of the writ petition which avers that "the allotment of the disputed land on Khatas Nos. 2, 3 and 6 have been secured by respondents Nos. 2, 3 and 4 in collusion with respondent No. 1 (i.e. Additional Settlement Commissioner) surreptitiously as the allotment seems to be ante-dated and it remained concealed uptv March, 1977, when it was for the first time implemented in Khasra Girdawari of the petitioner. The copy of the Khasra Qirdawari is as Annexure "E" to this petition." In para. 13 it was pleaded that "the impugned orders of the Additional Settlement Commissioner (Land) Gujrat dated 10-1-1977 and 22-2-1972 on Annexures "F", "G" and "H" are illegal, unjust, unfair, without application of mind Inter alia on the following grounds". In ground (a) it was averred that by notification dated 10-1-1970 the land had been declared as a "building site," and unless that order was got quashed the land could not have been allotted as "urban agricultural land" to any claimant. The aforesaid order was declared as invalid by the High Court on 20-4-1973 in Writ Petition No. 269-R/77, with the result that any allotment made during the interregnum, i.e. on 10-1-1972 and 20-2-19 i2 in favour of the respondents in the writ petitions was illegal and without jurisdiction (if we can say 'so as amplified further in ground (b). In ground (b) it was averred that in (the earlier) Writ Petition No. 269-R/70 the High Court had issued an order of status quo in year, 1970. (We are told that the exact date of that order is I1-3-1970). It was averred that in the face of that stay order no allotment could have been made to the respondents in the writ petition (who were claiming the allotment of the land on the same basis namely as urban agricultural land as was being done by the writ petitioner the implication being that if that construction of law was a bar for the writ-petitioner it should have been considered as a bar for the aforesaid respondents as well). Ground (c) was that Amanullah Qureshi writ-petitioner was a temporary allottee of this land since 1960 and a proposal was drawn in his favour on 28-3-1966 which could not be confirmed due to the declaration of the land as a "building site" by the Deputy Settlement Commissioner on 19-1-1970. After the aforesaid order was set aside by the High Court, the land should have been confirmed in favour of the writ-petitioner but illegally it was given to the respondent therein, which action of the settlement authority concerned, it was pleaded, was against the Settlement Laws and principles of natural justice. In ground (d) it was averred that according to provisions of paragraph 24 of the supplementary Scheme No. 2 to the Rehabilitation Settlement Scheme, the writ-petitioner had got preferential right than the respondents therein inasmuch as the writ-petitioner was a temporary allottee of this land. Reliance in this respect was further placed on a policy letter dated 16-9-1959. In ground (e) it was averred that the claim of the subsequent-allottees had come to this e: tate subsequently while the U. R. V. (entitlement certificate of the writ-petitioner) was of a prior date" since 29-1-1968 and was already pending there, with the result that under the principle of "first come first served" he had got prior right of allotment in the disputed land as against the subsequent arrivals. In ground (f ) it was pleaded that the land in dispute was proposed in the name of subsequent allottees on 28-1?-1971 but without serving any notice on the writ-petitioner who was not only a temporary allottee but in whose favour an earlier "proposal" of this land already subsisted.

7. These pleadings will show that when the learned Additional Settlement Commissioner made allotment on 10-1-1972 in favour of petitioners/ original vendors, he omitted to take the above-mentioned factors into consideration as is conspicuous from their commission and discussion in his order and in this respect the plea of the writ-petitioner as contained in para. 13 of the writ petition that he had passed the impugned order "without application of mind" was self-evident from that order itself. A perusal of annex "B" which is a copy of R. L.-II of Amanullah Qureshi shows that the case of his entitlement was postponed on 24-2-1971 so as to remain pending till the disposal of the writ petition which he had filed and which at that time was pending in the High Court against the notification declaring the land in dispute as a "building site". The order of the learned Additional Settlement Commissioner does not show whether he dealt with the pending case of Amanullah Qureshi or whether he had issued any notice to him or was even otherwise aware of the same or not. On the other hand (for example) R. L.-II o1 Sirajuddin son of Kala Khan Petitioner No. 1 shows that his claim in this estate was transferred from Dinga, which it may be mentioned is in Tehsil Gharian whereas the land in dispute (it was told to us) was in Gujrat Tehsil of Gujrat District. . The aforesaid R. L.-II further shows and it was conceded before us, that his claim was transferred to this village somewhere in year 1971, that is during the pendency of the earlier writ petition of the writpetitioner in the High Court. To cut the long story short, the contentions raised or the aspects of the case highlighted by Amanullah Qureshi do not seem to have been attended to or taken note of by the authority or officers who had made regular allotments to the present petitioners on 10-1-1972!, 22-2-1972. The High Court in the circumstances had two courses open before it. One was to attend to them itself, and the second was to give opportunity to the Settlement Department to express their own view thereon,, especially when the order dated 10-1-1972, passed by the Additional Settlement Commissioner was silent on these matters and did not indicate whether the whole record of the case namely the previous pending case of Amanullah Qureshi or otherwise the pendency of his claim in the estate was brought to his notice or not. The High Court in this context was justified in quashing the order impugned before it which obviously suffered from omission to take the relevant facts and factors into consideration and was passed without hearing Aman ullah Qureshi. However, the High Court was further careful in observing that if from the aforesaid contentions (after putting them to trial) the allotment appeared to have been fraudulently obtained by the present petitioners then the case of the respondent herein should be attended to. No doubt (n the writ petition the word "fraud" has not been specifically used by Amanullah Qureshi, but if later on during the course of arguments in the High Court, the cumulative effect of those pleadings as have been reproduced above, was addressed as an allotment fraudulently procured by the vendors, or if the learned Single Judge himself observed that if in the context hereinbefore mentioned a finding of fraud could be recorded against the subsequent) allottees, then the case of the writ-petitioner should be gone into, the mere fact that the order of the learned Single Judge is some what widely worded, on the subject in hand the same should present no difficulty in apprehending' its real pith and substance inasmuch as it has reference to the contentions' raised and pleadings made in the writ petition, which should be understood in a normal manner and not from the point of view of any expected artistic drafting of an ideal standard or form, though on our part we may observe that the plea of "collusion" surreptiousness and "concealment" as raised in para. 10 of the writ petition (reproduced above) and elaborated in para. 13 generally speaking could be held as pleading fraud because all the aforesaid attributes are species of fraud and could result in fraud. 8. 1t is not a case as was argued before us, where by simply noticing the various pleas the impugned order was quashed, but the said order was quashed because it suffered from containing no reference to the above-mentioned relevant facts and circumstances especially the adjudication of the case, of the writ-petitioner which had expressly been kept pending to await the result of the writ petition in the High Court and in other words as was pleaded by the writ-petitioner "without application of mind" to the relevant facts and factors mentioned above. In this context we must observe that the order of the learned Single Judge appears to us to be quite just and equitable, because it will give opportunity to both sides to get thelr entitlement comparatively thrashed out in a proper manner after allowing them an opportunity of leading such relevant evidence on the subject as they think proper in support of their respective contentions as highlighted by the learned Single Judge in his order. The present petitioners in the process, according to our opinion are not likely to suffer any prejudice, if otherwise they can substantiate better right as against the respondents for allotment of this land. It maybe pointed out that no Settlement Authority assessed or decided the comparative merits of the respective contestants which in our opinion was an exercise which in all fairness should have been resorted to before making final transfer of land to the present petitioners especially when a case about the same land had already been kept pending by the settlement authority itself. The High, Court took note of this aspect of the matter as is implied in its order and i can be deduced that this is why that it remanded the case as above mentioned. No doubt this reason has not been so mentioned in the order of the High Court but from the trend and tenor of the order it can easily be assigned t it and in any case we ourselves are inclined to maintain the High Court's order on this premises. Learned counsel for the present petitioners tried to argu that Amanullah Qureshi was never temporary allottee of this land or in the estate ; that he had no valid claim ; that no claim of his was ever transferred to this estate not to speak of validly transferred at all ; that no proposal or no valid proposal was made to him on 23-3-1966 as he alleges ; that he was a bogus claimant ; that his claim was not of a prior date; the proceedings of proposal and adjournment of his case were all illegal and fictitious and of no importance and could create no hurdle in the matter of transferring the land to his clients ; that his clients were bona fide allottees of this land and respondents had no preferential right against them. We wish the settlement authority concerned should have decided all these matters, and it is obvious that it is the very omission to consider all there and other attending facts and factors which has rendered the order of the Additional Settlement Commissioner to be without lawful authority and it is for sorting out these points etc. that the learned Single Judge felt inclined to remand the case. As he expressed no opinion on these points his order from that point of view is not against any parties and the field is still open for all concerned to prove their respective entitlement.

9. Some plea of laches was raised in the High Court and was repeated before us by the learned counsel for the present petitioners but we think the High Court was justified in not attaching any importance to the same inasmuch as the question of considering the right for regular allotment (in other words of confirming the land) to Amanullah Qureshi was postponed by the settlement authorities themselves on 24-2-1971 and there is nothing to show that that case was ever put up before whom and with what result, and whether Amanullah Qureshi was beard in that respect or not. In the circumstances explained above, and the history of the pursuit followed by him there was no justification to dub him with any plea of laches on his part.

10. The result is that in our opinion this is not a fit case for grant of leave to appeal. The petition is accordingly dismissed. Same order in C. P. S. L. A. 753,/79. s. A. H. Petition dismissed.