Sayeed Mohd. Khan v. State of Bhopal — 1953 DIGILAW 33 (MP)

ORDER : 1. This is a petition under Art. 226 of the Constitution, to issue a writ of certiorari to quash the order dated 27-12-1951, passed by the respondent No. 2, Collector Sehore and a writ of mandamus to the respondents 1 and 2, the State of Bhopal and the Collector Sehore directing them to restore the lands, now in possession of the respondent No. 3 Shri Bliegat, to the petitioner. The petition also seeks any other order or direction as may be necessary in the circumstances of the case. 2. The petitioner was a holder of 290.95 acres of land assessed at Rs. 169/7/- of mouza Gunyari in Sehore District. After the U.P. Land Utilization Act of 1947 was extended to Bhopal State with some modifications, on 3-11-50 the petitioner was served with a notice dated 5-10-51, by the respondent No. 2, the Collector, calling upon him, under S. 3 of the Act to let out all the above lands within 15 days. The petitioner objected on the grounds that about 125 acres were already under cultivation; that about 100 acres were uncultivable being rocky and that he was arranging to bring under cultivation the rest of the area and had cultivated about 50 acres since the receipt of the notice. The Collector, however, passed an order dated 27-12-1951 under S. 3, Cl. (4) of the Act in which he found that an area of 120.24 acres was under cultivation and 170.71 acres was uncultivated and that the latter area be taken possession of and let out to other cultivators and that the petitioner will be entitled to receive such, rents as may be fixed under S. 3(6) of the above Act. The petitioner went up in revision to the Revenue Commissioner against this order, but it was rejected on 5-5-52 as not tenable in law. He also sent an application to the Minister for Revenue and filed an application to the Collector for reconsidering the matter. No orders were passed on these applications. 3. Then on 9-6-52 he filed this petition. It may be mentioned that no provision was made under the Act as extended to Bhopal State after modification of the U.P. Land Utilization Act, 1947, for any compensation being paid to the person whose land was taken away, but by a later amendment in 1952, such a provision was made. 3. Then on 9-6-52 he filed this petition. It may be mentioned that no provision was made under the Act as extended to Bhopal State after modification of the U.P. Land Utilization Act, 1947, for any compensation being paid to the person whose land was taken away, but by a later amendment in 1952, such a provision was made. It may also be mentioned that the area of 170.71 acres was let out to and placed in possession of the respondent No. 3 Shri Bhagat and he was ordered to pay a sum equal to the land-revenue of the land to the petitioner every year. These facts are not disputed. 4. The petitioner contends that the Act, as applied to Bhopal State, was void as it infringed his fundamental right under Art. 19 (f) read with Art. 31 of the Constitution. It is also contended that the order dated 27-12-1951 is illegal ultra vires and against principles of natural justice because : (a) the Collector exercised jurisdiction in excess of his powers; (b) the notice was in respect of the whole of his land; (c) 100 acres of the land was uncultivable and further as (d) the order is vague and indefinite as the khasra numbers of the land were not stated. It is also said that the order was illegally executed as cultivated land was also taken away. 5. The respondents 1 and 2 denied that there was any exercise of excess jurisdiction by the Collector in passing the order. It is said that though the notice was in respect of the whole land, the order was confined to the land limited by S. 3 of the Act. It was denied that an area of 100 acres of the land was uncultivable and that the order was vague as the petitioner was aware of the land which was being taken away under that order. It is further denied that any cultivated land was taken possession of. It is contended that provision for compensation was made in the order and as such it was not void. It is also alleged that the land was given over to the petitioner in 1938 on certain conditions and was liable to be taken away on the breach thereof. It is further denied that any cultivated land was taken possession of. It is contended that provision for compensation was made in the order and as such it was not void. It is also alleged that the land was given over to the petitioner in 1938 on certain conditions and was liable to be taken away on the breach thereof. It was further contended that there was delay in filing the petition challenging the order dated 27-12-1951 and as such the petition should not be allowed as third party's interest was created in the meanwhile. 6. The respondent No. 3 denied that the land belonged to the petitioner as it was let out on certain conditions first to one Shri Akramulla for growing sugar-cane and then to the petitioner who, having committed breach of the conditions, ad forfeited his right to remain in possession. He adopted most of the contentions of the respondents 1 and 2 and further contended that as the Act was extended to Bhopal State by the Central Government under powers under S. 2 of the Part 'C' States Laws Act, the Union of India was a necessary party and also because the Government of Bhopal meant the Central Government at New Delhi, and therefore, this Court had no jurisdiction to entertain the petition. Other contentions were also made by the respondent no. 3. 7. As it appeared that : (1) the parties were at issue on several points of fact; (2) the petition was filed after about six months after the impugned order was passed and third 'party's interest had arisen by them and (3) there was a possibility of the Order of this Court becoming infructuous, the parties were heard on the question of the desirability and propriety of entertaining the petition and passing a final order thereon. 8. 8. The points of fact, on which the parties are at issue and which have serious bearing on the question of the tenability of the petition are : (a) whether the petitioner even as an occupant or holder had an untainted and absolute right to hold the land; (b) whether an area of 100 acres out of the land possessed by him was uncultivable; (c) whether the petitioner was aware of the land which was ordered to be taken away and thus there was no vagueness in the order impugned; (d) whether cultivated land was also taken away by the order and (e) whether serious injury will occur to the third party if the order is set aside and if so, what ? The petitioner argued that it was not necessary to enter into these facts as the Act itself was challenged. It would, however, appear that the Act is challenged because no provision was said to have been made in it for payment of compensation for the land taken away and the loss caused by an order under it. But with all this it is the ultimate result as found in the order dated 27-12-51 that is admitted to have given to the petitioner a cause of action and it is not gainsaid that in that order the petitioner is given compensation for the loss of the lands taken away. This Court will not enter into the mere academic discussion of the legality or otherwise of a Statute unless it is necessary to do so for the purpose of reaching an end. It is clear that the challenge, by this petition, is to the order dated 27-12-51 and in considering the order the Court is required to decide several questions of fact which cannot be decided without examining voluminous documentary evidence and hearing oral evidence. The question is whether under these circumstances, the Court should embark upon such inquiry to decide if writs, which are entirely discretionary, should be issued. In my opinion, the Court should not do so as the writs are considered to be speedy remedies in order to save the petitioner from a possible injury and the object cannot be achieved if a long inquiry is involved. 9. In - 'Sheoshankar v. State Govt. In my opinion, the Court should not do so as the writs are considered to be speedy remedies in order to save the petitioner from a possible injury and the object cannot be achieved if a long inquiry is involved. 9. In - 'Sheoshankar v. State Govt. of Madhya Pradesh', AIR 1951 Nag 58 (A), it has been pointed out by Hidayatullah, J. that : "A petition for the examination of the constitutionality of an Act does not lie even under the wide powers conferred by Art. 226. In no country is the constitutionality of a Statute examined on a mere petition to a superior Court. In other words, advisory opinions or declaratory judgments on the constitutionality of legislation cannot be given apart from some concrete injury or controversy." In the case on hand the illegality of the concrete order impugned is based only on certain facts which are disputed. The order does make a provision for compensation being paid to the petitioner and could not be challenged on that ground. 10. Most of the High Courts have held the view that sitting as writ-courts they cannot take upon themselves the task of deciding several complicated questions of fact as a petition under Art. 226 of the Constitution is by way of a summary remedy and such questions cannot be decided in such summary proceedings. The petitioner seeks a writ of mandamus and in - 'Samarendra Prosad v. University of Calcutta', AIR 1953 Cal 172 (B), it has been observed that : "In Mandamus proceedings such questions will not be tried the writ will not issue when it is necessary to try or decide complicated questions of fact. This is an elementary principle, a sound and salutary principle which should be followed." In - 'Ramani Kanta v. Gauhati University', AIR 1951 Assam 163 (C), Thadani, C.J. observed that :" Where the existence of a legal right, as distinct from a fundamental right, rests upon facts which have to be proved, remedy by way of a writ under Art. 226 is highly inappropriate. Facts which give rise to such a right or duty must ordinarily be proved by the person alleging the right in the ordinary civil Courts of first instance having jurisdiction." In my opinion, the observation applies with equal force whether it is a question of fundamental fright or a legal right. Facts which give rise to such a right or duty must ordinarily be proved by the person alleging the right in the ordinary civil Courts of first instance having jurisdiction." In my opinion, the observation applies with equal force whether it is a question of fundamental fright or a legal right. In - 'D. Parraju v. General Manager, B.N. Rly.', AIR 1952 Cal 610 (D), it is observed that : "Where the parties are in dispute on several questions viz., the authority by which the petitioner was appointed, the nature of the inquiry, if any, made in the case, etc., it is difficult to arrive at a satisfactory conclusion on these matters on mere affidavits. In order to get at the truth, it is necessary that the questions referred to above should be canvassed in a suit where the parties would have ample opportunity of examining their witnesses and the Court would be better able to judge which version is correct." In - 'Ramprasad Narayan Sahi v. The State of Bihar', AIR 1952 Pat 194 (E), it has been observed that : "The remedy given by Art. 226 is an extraordinary one and can be invoked only in exceptional circumstances by those who have no alternative remedy by way of suit or otherwise. Disputed questions of fact cannot be satisfactorily determined in these summary proceedings." 11. It would thus be found that as observed above this Court, sitting as a Court in a summary proceeding, cannot enter into the questions of fact raised and proceed to decide the desirability and tenability of the issue of writs under Art. 226 of the Constitution. 12. It also appears that the petition suffers from laches. The impugned order was passed on 27-12-51 and the petition was filed on 9-6-52 i.e. nearly six months later. It is true that the petitioner was in the meanwhile pursuing certain remedies which proved to be infructuous as untenable in law, but in my opinion, that fact does not absolve the petitioners as a writ Court does the function of a revising Court and must expect the aggrieved party to seek remedy as soon as the supposed injury results. It is true that the petitioner was in the meanwhile pursuing certain remedies which proved to be infructuous as untenable in law, but in my opinion, that fact does not absolve the petitioners as a writ Court does the function of a revising Court and must expect the aggrieved party to seek remedy as soon as the supposed injury results. While dismissing the petition in - 'Abdul Hamid v. The State of West Bengal', AIR 1953 Cal 223 (F), the learned Judge, who decided the case, has paid pointed attention to the fact that the petitioner in that case was guilty of unreasonable delay in moving the Court and no satisfactory explanation was forthcoming why the petitioner did not take steps earlier in the matter. In - 'Rajnandgaon Bus Service Co. v. The Appellate Authority', AIR 1953 Nag 80 (G), it is observed that : "Though no period of limitation has been prescribed for an application under Art. 226 of the Constitution, yet ordinarily it must be made as soon as any threat to any right is there, and - if an application is not made within 45 days of the order impugned, it shall be deemed not to have been made with due diligence, and any applicant moving this Court beyond that time will have the burden on him of showing that in spite of due diligence the Court could not have been moved earlier." In that case the petitioner had waited for ten months before he went up with the petition to the Court after the alleged threat to this right. 13. In - 'Muthiah Chettiar v. Commr. of Income-tax, Madras', AIR 1951 Mad 204 (H), it has been observed that : 'Though there is no period of limitation as such prescribed for application for the issue of prerogative writs, long delay can be one of the grounds for refusing to grant an application for the issue of such writs. There may, however, be circumstances which should make the High Court take a more lenient view and entertain the application even after delay." It would, however, appear that in the case on hand, the matters have not stopped at the mere order dated 27-12-51. It is an admitted fact that soon after the order, interest in a third party was created in the land and it is the case of the respondent no. It is an admitted fact that soon after the order, interest in a third party was created in the land and it is the case of the respondent no. 3 that he had invested large sums of money and had spent his own, labour in breaking the soil and had made improvements therein by the time the petitioner came to this Court, so that this Court will, it appears, be driven to an examination of a rigmarole of questions not only of law, but also of fact, before it could consider the question of issuing writs as prayed for, and as pointed out above, it cannot take upon itself to do so as the necessary lapse of time would militate against the propriety of the remedy as such. No writs as prayed for can, therefore, be issued so as to militate against the third party's interest for no fault of his. 14. The petition is, therefore, liable to be dismissed on these preliminary considerations and is accordingly dismissed with costs and the petitioner is ordered to pay the costs of the respondents nos. 1 to 3. Counsel's fees for each set of parties will be Rs. 75/-, if certified. Petition dismissed.