AZIZUS SUBHAN Vs. UNION OF INDIA

JUDGEMENT

(1.) This appeal is directed against an order of Banerjee, J. dated June 22, 1965, rejecting the appellants application for a Rule Nisi in a petition under Article 226 of the Constitution. The only question in this appeal is if in the facts hereinafter stated, a Rule Nisi should be issued.

(2.) The appellant is the grandson of the late Khan Bahadur Shamsul Alam, who held the office of Deputy Superintendent of Police, and who was assassinated in 1910 while appearing for the prosecution in a political case. In recognition of his services and for support of the dependent members of his family, the then Government of India granted a Jaigir in respect of certain mouzas in the District of Murshidabad. By a sanad dated June 10, 1912, the grant of the jaigir was made to the widow of me late Khan Bahadur, the grandmother of the appellant, the grant being limited to her eldest male descendant. The appellant as the eldest surviving male descendant field the said Jaigir until the happening of the events hereinafter stated. The West Bengal Estates Acquisition Act, 1953, (hereinafter referred to as the Act) provided by Section 4 thereof, for the issue of a notification by the State Government declaring that with effect from the date mentioned in the notification, all estates and the rights of every intermediary therein situated in any district or part of a district shall vest in the estate free from all encumbrances. Under the provisions of the Act notices were issued by the respondent No. 3, who took possession of the said jaigir held by the appellant. Thereupon the appellant moved an application under Article 226 of the Constitution challenging the vesting of the jaigir and taking possession thereof by and on behalf of the respondent No. 2. On this application a Rule Nisi was obtained by the appellant which was, however, discharged by judgment and order of Sinha, J. dated January 22, 1959. The appellant thereafter moved the application, out of which this appeal arises, practically on the same ground and to the same relief. In this application, however, the appellant impleaded the Union of India as a party respondent which was not done in the earlier application. It was this application which was rejected by Banerjee, J, as hereinbefore mentioned and this appeal is for a refusal to issue a Rule Nisi on the application.

(3.) The first point urged by Mr. Chittatosh Mukherjee, learned Advocate for the appellant, was that this application was not barred by res judicata as the parties in the present application were not the same as in the previous application. Therefore, Mr. Mukherjee argued that although Sinha. J. held in the earlier application that the appellant's interest under the sanad was a right in land and was an 'estate' as defined under the Bengal Tenancy Act and was also an interest of an intermediary above a raiyat and for these reasons the estate held by the appellant came within the purview of the Act, this conclusion of Sinha, J. would not operate as res judicata in regard to the present application out of which this appeal arises. It was also argued that the issues involved in this application were different from the issues in the previous application, inasmuch as the question raised in the present application is that the grant of the sanad to the appellant's grandmother was made under the Crown Grants Act, 1895, and this issue was not before the Court in the previous application of the appellant. Mr. Mukherjee referred to Section 3 of the Crown Grants Act and submitted that under that section the grant of the jaigir must be held to be valid notwithstanding the terms of any rule of law or Statute or enactment of the Legislature to the contrary. Mr. Mukherjee, therefore, submitted that the present application of the appellant was not barred by the doctrine of res judicata.