SHANKARA CO-OP HOUSING SOCIETY LTD v. M. PRABHAKAR & Ors.

they were not aware of the Notification issued under the A Evacuee Property Act, since no notice was served on them, though a public notice was issued by the authority under the Evacuee Property Act. While explaining the delay of nearly eleven years from 1955 to 1966, they contended that they were in possession of the property B and they were making representations before the authorities under the Evacuee Property Act for redressal of their grievance. As regards the delay after the orders were passed by the Settlement Commissioner in the year 1983 till the writ petition was filed in the year 1990, it is c explained that they had moved the State Government to suo-moto revise the order passed by the Chief Settlement Commissioner and since the State Government returned their request, they had approached the High Court to issue directions to the State Government to issue appropriate directions. Thus, at every stage, there was inordinate delay in approaching the authorities for redressal of their grievance. Even when they approached the authorities, they were claiming wrong reliefs or incomplete reliefs. Even when they filed the writ petition in the year 1990, they did not choose to question the correctness of the Notification issued under the Evacuee Property Act but was questioned by way of filing an amendment application in the year 1998. There is some merit in the submission made by the contesting respondents that the petitioners in their pleadings before the writ court, had not even offered any explanation, much less satisfactory explanation, in approaching the court nearly after three decades from the date of notification issued under the Evacuee Property Act. The power of the High Court under Article 226 of the Constitution to issue G an appropriate writ, order or direction is discretionary. One of the grounds to refuse relief by a writ court is that the petitioner is guilty of delay and laches. Inordinate and unexplained delay in approaching the court in a writ is indeed an adequate ground for refusing to exercise H F E 0 476 SUPREME COURT REPORTS (2011) 7 S.C.R. B A discretion in favour of the petitioners therein. The unexplained delay on the part of the petitioner in approaching the High Court for redressal of their grievances under Article 226 of the Constitution was sufficient to justify rejection of the petition. The other factor the High Court should have taken consideration that during the period of delay, interest has accrued in favour of the third party and the condonatoin of unexplained delay would affect the rights of third parties. Delay defeats equity and that the discretionary c relief of condonation can be had, provided one has not given by his conduct, given a go by to his rights'. [Para 61] [516-E-H; 517-A-H; 518-A-B] Lindsay Petroleum Company vs. Prosper Armstrong Hurd etc (1874)5 PC 221; Moon Mills Ltd. vs. Industrial D Courts AIR 1967 SC 1450; Maharashtra State Road Transport Corporation vs. Ba/want Regular Motor Service AIR 1969 SC 329: 1969 SCR 808; Amrit La/Berry vs. CCE (1975) 4 SCC 714: 1975 (2) SCR 960; State of Maharashtra vs. Digambar(1995) 4 SCC 683: 1995 (1) Suppl. SCR 492; E Shiv Dass vs. Union of India (2007) 9 SCC 274: 2007 (1) SCR 1127; City and Industrial Development Corporation vs. Dosu Aardeshir Bhinandiwala and Ors. (2009) 1 SCC 168: 2009 (1) SCR 196; State of M.P. and Ors. vs. Nandlal Jaiswal and Ors. (1986) 4 SCC 566: 1987 (1) SCR 1; Mis Dehri F Rohtas Light Railway Company Ltd. vs. District Board, Bhojpur and Ors. (1992) 2 CC 598: 1992 (2) SCR 155; Municipal Council vs. Shaha Hyder Baig (2002) 2 SCC 48 - referred to. G Effect of the judgment and order of the High Court in W.P. No. 1051 of 1966:

3.1. In the writ petition filed by 'M', the Regional Settlement Commissioner and Custodian of Evacuee Property, was arrayed as one of the respondents. That H only means, he was fully aware of the judgment and order SHANKARA CO-OP HOUSING SOCIETY LTD. v. M. 477 PRABHAKAR & ORS. passed by the Writ Court. In the revision petition filed by A the other legal representatives of late 'M', he was aJso arrayed as one of the respondents. However, a perusal of the order passed by Deputy Custodian General does not clearly indicate whether it was brought to his notice the judgment and order passed by the High Court, yet B again, in the order by the Collector-cum-Deputy Custodian dated 28.5.1979, there was no reference to the judgment and order passed by the High Court. However, in the order passed by Chief Settlement Commissioner of Evacuee Property, then~. was reference to the judgment c of the High Court. The said authority while setting aside the order passed by Collector-cum-Deputy Custodian as nullity, did not rely on the judgment and order passed by the High Court. In the subsequent Writ Petition filed, the respondents, in their Counter Affidavit had specifically 0 contended that the Notification dated 11.12.1952 has become final in view of the judgment and order passed by the High Court in Writ Petition No. 1051 of 1966 as also in Writ Petition 7517 of 1983. The Division Bench of the High Court while dealing with this aspect, observed in its E order that it is not correct to read the judgment dated 14.6.1968 rendered in W.P. No. 1051 of 1966 that this Court· had negatived the rights of the petitioners. A sentence here and there in a judgment cannot be picked up in construing it. A judgment has to be construed on reading and understanding as a whole and if so understood, the judgment in W.P. 1051 of 1966 is to the effect that in the writ petition, the rights of the parties cannot be adjudicated and more so in view of the fact that alternative · remedy of appeal is available under the Act. By that, it F cannot be assumed that this Court had upheld the G Notification issued under Section 7 of the Act". The reasoning and conclusion reached by the Division Bench of the High Court cannot be accepted. The decision of the court was not correctly read. However, it is agreed that the judgment should be read as a whole and H 478 SUPREME COURT REPORTS [2011] 7 S.C.R. A understood in the context and circumstances of the facts of that case. [Paras 72 and 73] [524-E-H; 525-A-F] U. P. State Road Transport Corporation v. Asstt. Commissioner of Police (Traffic) Delhi 2009(3) SCC 634 - referred to. 8

3.2 The judgment and order passed by the High Court in W.P. No. 1051 of 1966 is noticed. The court, while narrating the facts, specifically observed that what was challenged before it by the petitioner was the Notification C dated 11.12.1952 issued under Section 7 of the Evacuee Property Act declaring certain properties as evacuee properties. While dismissing the writ petition, the court observed that petitioner has failed to avail the alternate remedy of appeal provided under the Act and at the D belated stage, he cannot question the correctness or otherwise of the Notification dated 11.12.1952. Therefore, it may not be correct to say that the court had rejected the writ petition only on the ground that the petitioner without availing the alternate remedy provided under the E Act, could not have filed the writ petition. The writ petition was dismissed by the High Court not only on the ground that the petitioner had failed to avail the remedy under the Act, but also on the ground that the petitioner could not have questioned the Notification dated 11.12.1952 at a F belated stage. Therefore, the approach of the Division Bench of the High Court was not justified in entertaining a writ petition on the very issue, which had attained finality in an earlier proceeding. This view has nothing to do with the Principle of res judicata nor it can be said that G principles of res judicata would apply in the facts and circumstances of this case. This Court is only holding that when a competent court refuses to entertain a challenge made to a Notification issued on 11.12.1952 in a writ petition filed in the year 1966, the High Court could not have entertained the writ petition on the same cause H SHANKARA CO-OP HOUSING SOCIETY LTD. v. M. 479 PRABHAKAR & ORS. of action at a belated stage in a writ petition filed in the A year 1990. The course adopted by the High Court not only leads to confusion but also leads to inconvenience. (Para 74] [526-B-G] B Shakur Basti Shamshan Bhumi Sudhar Samiti v. Lt. Governor, NCT of Delhi (2007) 13 SCC 53: 2007 (13) SCR 145; A.P. Housing Board v. Mohd. Sadatul/ah (2007) 6 SCC 566: 2007 (5) SCR 107; Hindustan Construction Co. Ltd: and Anr. v. Gopal Krishna Sengupta and Ors.- (2003) 11 SCC 210; Food Corporation of India v. S.N. Nagarkar, (2002) C 2 SCC 475; Oriental Bank of Commerce v. Sunder Lal Jain and Anr. (2008) 2 SCC 280: 2008 (1) SCR 213; India Household and Healthcare Ltd. v. LG Household and Healthcare Ltd. 2007 (5) SCC 510: 2007 (3) SCR 726 - referred to. D

4. The submission that the writ petition was filed by one of the co-owners of late 'M' and judgment and order passed would not bind the other parties cannot be accepted. No co-owner has a definite right, title and interest in any particular item or portion thereof. On the E other hand, he has right, title and interest in every part and parcel of the joint property or coparcenery under Hindu Law by all the coparceners. [Para 75) [527-B-C] A. Viswanath Pillai and Ors. vs. The Special Tahsildar F for Land Acquisition No. IV and Ors. (1991) 4 SCC 17: 1991 (3) SCR 465 - referred to. Constructive Res judicata:

5. It is admitted fact that when the contesting G respondents filed W.P. No. 1051 of 1966, the ground of non-compliance of statutory provision was very much available to them, but for the reasons best known to them, they did not raise it as one of the grounds while challenging the Notification dated 11.12.1952 issued H 480 SUPREME COURT REPORTS [2011] 7 S.C.R. A under the Evacuee Property Act. In the subsequent writ petition, initially, they had not questioned the legality of the Notification, but raised it by filing an application which was allowed by the High Court. Thus, the High Court was not justified in permitting the contesting respondents to B raise that ground and answer the same, since the same is hit by the principles analogous to constructive res judicata. [Para 78] [529-A-C]