UNION OF INDIA Vs. DIWAN CHAND

JUDGEMENT

(1.) THE facts giving rise to this appeal under clause 10 of the Letters Patent against an order passed by a learned single Judge accepting Civil Writ Petition No. 1391 of 1968 may be shortly stated. The petitioner was allotted 2. 13 standard acres of land in lieu of that left by him in Pakistan on the partition of the country in the year 1947. The allotment in his favour was, however, cancelled on the 27th of July, 1968, by the concerned Managing Officer who gave permission to the petitioner to purchase an area of 6 standard acre against a payment of Rs. 675.00per acre. The petitioner availed of the permission, deposited the price in the treasury and was sold the said area of 6 standard acre in the year 1960. Later on by an order dated the 13th of August, 1963, the Chief Settlement Commissioner affirmed the order of cancellation. The petitioner then applied for permission to purchase the area covered by the cancellation order. The purchase was allowed on payment of the market value but he refused the officer as he insisted on paying only the "reserve" price which was not acceptable to the rehabilitation authorities. The petitioner then knocked at the door of this Court in Civil Writ Petition No. 2280 of 1963 in which, according to his pleadings, the prayer made was that the cancellation of the allotment ordered by the Managing Officer and the Chief Settlement Commissioner be quashed. That petition was dismissed in limine on the 20th of December, 1963, by a Division Bench of this Court. By means of the petition decided by the learned single Judge the petitioner sought afresh the quashing of the order of cancellation of allotment and also prayed for the setting aside of the order refusing to sell to him the disputed land having an area of 2. 7 standard acres at the "reserve" price.

(2.) AT the hearing before the learned single Judge a plea was raised on behalf of the respondents to the petition who are the appellants before us and are so referred to hereinafter, that the order of cancellation of allotment could not be challenged a second time and that the order dismissing Civil Writ Petition No. 2280 of 1963 operated as res judicata. The learned single Judge refused to entertain the plea on the ground that it has been waived because it had not been raised in the written statement filed by the appellants. This opinion of the learned, Single Judge cannot be accepted as correct in view of the dictum of their Lordships of the Supreme Court in State of Punj v. Bua Das Kaushal, AIR 1971 SC 1676. In that case no specific plea of res judicata was taken in the written statement nor was any issue framed on the point before the trial Court but the necessary facts were present to the mind of the parties and were present to the mind of the parties and were gone into by the Court. When the matter came up in appeal before a leaned Single Judge of this Court, he framed two issues in relation to the point and called for a report thereon from the trial Court. The order of the learned Single Judge was upheld by their Lordships of the Supreme Court who observed in this connection (at p. 1678 ).

(3.) THE question of the right of the writ petitioner to purchase the disputed land measuring 2. 7 standard acres at the "reserve" price was not decided by the learned Single Judge and has to be determined before the writ petition can be finally disposed of. We direct, therefore, that the case be laid before a learned Single Judge for determination of that point. In relation to the land measuring 6 standard acre and mentioned above, it was claimed by the writ petitioner in paragraph 21 of his petition that the same had been auctioned by the appellants along with the other land allotted to him and had been purchased by four persons who are arrayed as respondents Nos. 2 to 5 in the appeal being decided by this judgment. In so far as that area (6 standard acre) is concerned, the writ petitioner has already become its owner by reason of the purchase from the Rehabilitation Department in the year 1960 as stated in an earlier part of the appellants is wholly unjustified and is, therefore, struck down.