RAJWANT SINGH Vs. FINANCIAL COMMISSIONER

JUDGEMENT

(1.) BANT Ram alias Sant Ram (since deceased), husband of respondent 6 and father of respondents 7 to 13, was a displaced person from West Pakistan and was allotted a parcel of agricultural land measuring 1 standard Acre and 111/2 Units in village Pehowa. Tehsil Guhla, district Karnal, in 1950, in lieu of the land left by him in Pakistan. This allotment was cancelled by the Managing Officer, respondent 4, by his order dated September 10, 1962, and the land was allotted to Chuha Mal, respondent 5, on the following day and the proprietary rights in respect thereof were transferred in his favour by Sanad dated February 25, 1963, Chuha Mal thereafter sold the said land to Avtar Singh, the father of the petitioners, by means of a registered sale deed dated April 3, 1963. Bant Ram filed an appeal against the order of the Managing Officer dated September 10, 1962, cancelling his allotment which was accepted by the Assistant Settlement Commissioner with powers of Settlement Commissioner, Punjab, Jullundur, on August 9, 1963, and the case was remanded to the Managing Officer for re-decision. Against that order, chuha Mal filed a review petition which was accepted on June 5, 1965, and the order of the Managing Officer cancelling the allotment of Bant Ram dated september 10, 1962, was restored. Against that order, Bant Ram filed a revision petition to the Chief Settlement Commissioner which was dismissed by the authorised Chief Settlement Commissioner, Haryana, at Jullundur, by order dated october 24, 1967. The case was forwarded to the Tahsildar (Sales)-cum-Managing officer, Kaithal, with the direction that an alternative allotment in village Pehowa or in any nearby village, according to his choice, may be given to Bant Ram. Bant Ram then filed Civil Writ No. 44 of 1968 in this Court challenging the order of the managing Officer dated September 10, 1962, the order of the Assistant Settlement commissioner passed on review dated June 5, 1965, and the order of the authorised Chief Settlement Commissioner. Haryana, dated October 24, 1967. This writ petition was dismissed by the Motion Bench on January 5, 1968, with the only word 'dismissed'. Bant Ram then filed a petition under Section 33 of the displaced Persons (Compensation and Rehabilitation) Act, 1954, (hereinafter called the Act), before the Central Government which was accepted on November 10, 1970, by Shri Damodar Dass Commissioner Revenue and Secretary to government, Haryana, Rehabilitation Department, exercising the powers under section 33 of the Act. The order of the Authorised Chief Settlement Commissioner dated October 24, 1967, was set aside and the allotment of the land originally made in favour of Bant Ram was restored. The present writ petition has been filed by the sons of Avtar Singh challenging that order, and praying that it should be quashed.

(2.) WRITTEN statement has been filed by respondents 6 to 13, who are the heirs of bant Ram deceased. The learned counsel for the petitioners has very strenuously argued that after the dismissal of Civil Writ No. 44 of 1968 by this Court, a petition under Section 33 of the Act was not competent before the Central Government as the decision of this Court operated as res judicata. It is submitted that all the tribunals within the jurisdiction of this Court are subject to its superintendence under Article 227 of the Constitution and the order passed by this Court dismissing civil Writ No. 44 of 1968 had the effect of affirming the order of the Authorised chief Settlement Commissioner, dated October 24, 1967, and in fact the order of the Authorised Chief Settlement Commissioner merged into the order of the High court and thereafter it was the order of the High Court that was operative. The matter having been decided by this Court, the Central Government had no further jurisdiction in the matter. I have given my careful thought to this submission made by the learned counsel, but I do not find any substance therein. It has to be remembered that the jurisdiction of the High Court under Articles 226 and 227 of the Constitution has been conferred by the Constitution by way of extraordinary remedy. The Rehabilitation authorities mentioned in the Act, including the Central government under Section 33 thereof, are not Courts or Tribunals sub-ordinate to the High Court and against their orders, no appeal as a matter of right, lies to the high Court nor has been provided by the statute. The orders passed by any of the authorities under the Act can be challenged in this Court by way of a writ of certiorari. It is not a statutory remedy but constitutional remedy. While exercising the powers under Article 226 of the Constitution, this Court exercises equitable jurisdiction and is not bound to interfere unless there is an inherent lack of jurisdiction in the Tribunal or Court which passed the order or gross injustice has been done or on some other well-recognised grounds. This extraordinary remedy provided by the Constitution does not oust the remedies provided under the statute and the decision of this Court on a petition under Articles 226 and 227 of the Constitution will operate as res judicata before any other Tribunal or Court only if the matter is decided on merits after hearing both the parties. An ex parte order dismissing the petition under Articles 226 and 227 of the Constitution in limine is neither an order on merits nor operates as res judicata, as has been ruled by their Lordships of the Supreme Court in Daryao v. State of U. P. , AIR 1961 SC 1457. That was a case in which a writ petition had been dismissed by the High court under Art. 226 of the Constitution and a petition under Art, 32 of the constitution was filed in the Supreme Court on the same facts and for the same reliefs. A question arose whether the decision of the High Court operated as respondent judicata. Their Lordships held that the order having been passed by the High Court on merits operated as a bar to the making of the petition under article 32 of the Constitution. In paragraph 19 of the report, their Lordships observed as under:-

(3.) THESE observations clearly lay down that a writ petition under Art. 226 of the constitution dismissed in limine by the High Court without passing a speaking order does not operate as res judicata in other proceedings. Doubt was raised whether such a dismissal would bar a second petition under Article 226 of the constitution in the same High Court. This matter was considered by a Full Bench of this Court in Bansi v. Addl. Director, Consolidation of Holdings, Rohtak, ILR (1966)2 Punj 824 = (AIR 1967 Punj 28 (FB) and it was held:-