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Kehar Singh Nihal Singh Vs. Custodian General, Evacuee Property and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtPunjab and Haryana High Court
Decided On
Case NumberSupreme Court Appeal No. 17-D of 1957
Judge
Reported inAIR1959P& H58
ActsConstitution of India - Articles 133, 133(1), 226 and 227; Administration of Evacuee Property Act, 1950 - Sections 10(27)
AppellantKehar Singh Nihal Singh
RespondentCustodian General, Evacuee Property and ors.
Appellant Advocate H.L. Sibal, Adv.
Respondent Advocate H.S. Doabia, Adv.
DispositionPetition dismissed
Cases Referred and State of Madras v. C. P. Agencies
Excerpt:
.....powers of superintendence under article 227 of the constitution. - when we dismissed the petition all we indicated was that there was no occasion for us to exercise the extraordinary jurisdiction of the high court in this case, and quite clearly no disputed matter concerning the rights of the parties was ever decided by us. 16. in view of what has been stated above it is not necessary to consider the third point argued before us, namely, that our judgment involves directly or indirectly some claim or question respecting property of the like amount or value......(b). it was also urged that neither the order of this court was final nor was it made in a civil proceeding. the latter contention may be examined first.4. in a full bench decision of patna high court in collector of monghyr v. pratap singh bahadur, (s) air 1957 pat 102, it was held that proceeding in the high court for grant of a writ under article 226 of the constitution was not a 'civil proceeding' within the meaning of article 133 of the constitution, and the petitioner against whom a writ has been issued has no right of appeal to the supreme court under that article.the reasoning of the learned judges constituting the full bench was, that the jurisdiction of the high court under article 226 was an extraordinary jurisdiction, vested in it, not for the purpose of declaring the.....
Judgment:

1. The petitioner Kehar Singh has made an application under Sections 109 and 110, and Order 45, Rules 2 and 3 of the Code of Civil Procedure for leave to appeal to the Supreme Court against the order of the Division Bench in Letters Patent Appeal No. 115 of 1956, dated 25-2-1957. Brief facts of this case are that the petitioner Kehar Singh was allotted 83 standard acres and 12 1/4 units of land on quasi permanent basis in February 1950 in village Kirtowal in District Amritsar. Arjan Singh was an allottee of a slightly bigger area, viz., 34 standard acres and 8 1/2 units of land in the same village and on this ground he was ousted from the village under orders of the authorised Deputy Custodian on 6-11-1951.

The Additional Custodian (Rural) rejected the revision petition of Arjan Singh by his order dated 6-8-1952. The Deputy Custodian General, in exercise of his powers under Section 21 of the Administration of Evacuee Property Act, set aside the order of the Additional Custodian on 1-2-1954 & directed that Kehar Singh was in fact the bigger of the two allottees & he Should be ousted from the village. The reason why the Deputy Custodian General reversed the decision of the Additional Custodian was that during the pendency of the appeal Kehar Singh was allotted an additional 1 acre and 1 1/2 units and, therefore, in fact, he became bigger of the two allottees,

2. Kehar Singh presented a petition under Arts. 226 and 227 of the Constitution of India for the issue of an appropriate writ to the respondents of the effect that his possession should not be disturbed and the order of the Deputy Custodian General dated 1-2-1954, should not be given effect to. The learned single Judge by his order dated 21-9-1956 allowed the petition and quashed the order of the Deputy Custodian General. Arjan Singh presented an appeal under Clause 10 of the Letters Patent.

The Letters Patent Bench allowed the appeal holding that it was within the competence of the Deputy Custodian General to set aside the order evicting appellant Arjan Singh from the village and directing that the respondent Kehar Singh should be evict-ed instead. The Bench held that the Deputy Custodian General in passing that order did not decline to assume jurisdiction in the case or to pronounce upon the matter in controversy between the parties. It was also held that he did not exceed his jurisdiction and did not act in violation of the principles of natural justice and his order was within the ambit of his discretionary powers.

3. In this petition the counsel for the petitioner has prayed that this Court should grant a certificate as contemplated in Article 133 of the Constitution. During the course of argument it was conceded by him that he did not seek certificate under sub-clauses (a) or (c), but only under Sub-clause (b) of Clause 1 of Article 133 on the ground that the judgment, decree or final order of the Letters Patent Bench involved directly or indirectly some claim or question respecting property not less than Rs. 20,000/- in value. On behalf of the respondent it was said that the petitioner was not entitled to a certificate under sub-Clause (b). It was also urged that neither the order of this Court was final nor was it made in a civil proceeding. The latter contention may be examined first.

4. In a Full Bench decision of Patna High Court in Collector of Monghyr v. Pratap Singh Bahadur, (S) AIR 1957 Pat 102, it was held that proceeding in the High Court for grant of a writ under Article 226 of the Constitution was not a 'civil proceeding' within the meaning of Article 133 of the Constitution, and the petitioner against whom a writ has been issued has no right of appeal to the Supreme Court under that Article.

The reasoning of the learned Judges constituting the Full Bench was, that the jurisdiction of the High Court under Article 226 was an extraordinary jurisdiction, vested in it, not for the purpose of declaring the civil rights of the parties but for the purposes of ensuring, that the law of the land was implicitly obeyed and that the various tribunals and public authorities were kept within the limits of their jurisdiction. In other words the jurisdiction of the High Court under Article 226 was supervisory with a view to see that die tribunals and public authorities acted within the limits of their respective jurisdiction.

With great respect I find myself unable to agree with the rather sweeping dictum of the Full Bench of die Patna High Court. The proposition is worded too widely and cannot be deemed to be universally applicable in all cases of petitions, where extraordinary jurisdiction of the High Court is invoked under Article 226 or even under Article 227 of the Constitution. For determining whether proceedings are of a civil or criminal nature or fall in any special category, it is the subject-matter of the proceedings which should be seen, rather than the particular jurisdiction of the forum, under which the petitioner has invoked his rights.

A proceeding which is undoubtedly of a civil nature, does not cease to be so because the petitioner has invoked the extraordinary jurisdiction of the High Court under Article 226 or Article 227 of the Constitution. It is not the manner in which the interference of the High Court is sought, but the nature of the claim canvassed, which should determine the civil character of the proceedings. A proceeding taken for the enforcement of civil right is a civil proceeding, even if the jurisdiction of the Court, which has been invoked, happens to be special or extraordinary.

5. The word 'civil' when prefixed before 'proceeding', 'action', 'suit', 'remedy', or other cognate expression relates to private rights and remedies given to individuals or corporations as members of is community in contradistinction to those which are public and relate to Government, An action, which has for its object, the recovery o private or civil rights, or compensation for their infraction, is necessarily a civil proceeding. A civil action is a proceeding in a Court of Justice by one party against another, for the enforcement or protection of a private right, or for the redress or prevention of a private wrong.

The word 'criminal' is used in contradistinction to civil proceedings or actions. The former includes proceedings taken in the name of the State the end and design of which is the punishment of the criminal; while the latter signifies actions for enforcement of civil rights. Bouvier's Law Dictionary defines the legal or technical meaning of the word 'civil' to be 'in contradistinction to criminal, to indicate the private rights and remedies of men as members of the community, in contrast to those which are public and relate to the Government', Anderson Law Dictionary defines tho word 'civil' thus :

'concerning the rights of and wrongs to individuals, considered as private persons, in contradistinction to criminal, or that which concerns the whole political society, the community. State Government.' According to Shroud's Judicial Dictionary (Third Edition) civil proceeding,

'is a process for the recovery of individual right or redress of individual wrong; inclusive in its proper legal sense, of suits by the Crown';

Black's Law Dictionary gives the meaning of 'civil' thus :

'In the language of the law it has various significations. In contradistinction to barbarous or savage, it indicates a state of society reduced to order and regular Government; thus, we speak of civil life, civil society, civil Government, and civil liberty. In contradistinction to criminal, it indicates the private rights and remedies of men, as members of the community, in contrast to those which ate public and relate to the Government; thus, we speak of civil process and criminal process, civil jurisdiction and criminal jurisdiction.'

According to the Oxford English Dictionary 'civil' means

'Distinguished from criminal. Pertaining to the private relations between members of a community, and to the legal proceedings employed in settling them,'

6. In a recent Full Bench decision of his Court in Kapur Singh v. Union of India, (S) AIR 1957 Pun) 173, the following two questions had been referred.:'

(1) Whether an order passed by this Court declining to issue a writ under Article 226 of the Constitution can be regarded as a Judgment, decree or final order within the meaning of Article 133 and

(2) Whether the proceeding in which such as order is passed can be regarded as a civil proceeding within the meaning of the said Article ?

The second question was answered as under :

'A review of all these authorities shows that the second question referred, whether the proceeding in which die Court declines to issue a writ under Article 226 of the Constitution of India can be regarded as a Civil Proceeding or not within the meaning of Article 133, cannot be answered by saying just yes or lip. It will depend on tho facts and circumstances of each case and keeping diem in view it has to be determined in each case.

But what; a civil proceeding is may be defined as judicial process to enforce a right and includes any remedy employed to vindicate that right: Province of Bombay v. Khushaldas Section Advani, AIR 1950 SC 222 ill covers every step in an action and is equivalent to an action Pryor v. City Offices Co., (1883) 10 QBD 504. It is a prescribed course of action for enforcing a legal action and embraces the requisite steps by which judicial action is invoked.'

7. In this connection reference may also be made to Jagannath Agarwalla v. State of Orissa, (S) AIR 1957 Orissa 42, Ramayya v. State of Madras, AIR 1952 Mad 300 and State of U.P. v. Mukhtar Singh, (S) AIR 1957 All 505 (522 per Justice Beg).

8. In the light of what has been considered above, I think, that the question in controversy in these proceedings is eminently of a civil nature as it pertaind to the private rights of the contestants relating to the allotment of agricultural land in village Kirtowal. The order of die Letters Patent Bench in this case was, therefore, made in 'a civil proceeding.'

9. The next question that has been agitated before us is that our decision is not 'judgment, decree or final order' in so far as there was no final determination of the rights of the parties in the proceeding. The words 'judgment, decree or final order,' are a compendious expression, and connote existence of adjudication by the Court, upon the rights of the parties, appearing before it, on the merits of the dispute and do not include an interlocutory judgment. In the Letters Patent Bench, all that was held by us was that the Deputy Custodian General was competent to set aside the order evicting Arjan Singh from village Kirtowal and he could direct that Kehar Singh should have been evicted instead.

We also held that the Deputy Custodian General neidier declined to assume jurisdiction in the case nor exceeded his jurisdiction. The real controversy between the parties to that case was regarding the Place where the land should be allotted. The dispute id not relate to the respective rights of the parties to any quantitative allotment. The only contention was as to which one of the contestants should be allotted land in village Kirtowal and who should be accommodated elsewhere. Wherever (he parties were accommodated, the land to be allotted to them would be in value, equal to the area which had already been decided upon by the authorities; and on this question they were not at issue.

The dispute merely related to the selection of the village. It is for the authorities, under the Administration of Evacuee Property Act to make allotment of lands to the displaced persons in the several areas. Such rights and such remedies as the respective par ties possess under the Administration of Evacuee Property Act have been left untouched. The officers concerned have not been given any directions regarding the manner of allotment, or as to the place where one or the other of the parties should be accommodated. It cannot, therefore, be said that this Court has finally disposed of the rights of the parties.

10. In Firm Ramchand Manjimal v. Firm Gover-dhandas Vishundas Ratanchand, AIR 1920 PC 86 (87) Viscount Cave observed :

'The question as to what is a final order was considered by the Court of Appeal in the case of Salarnan v. Warner, (1891-1 QB 734) and that decision Was followed by the same Court in the case of BozscH v. Altricham Urban District Council, (1903-1 KB 547). The effect of those and other judgments Is that an order is final if it finally disposes of the rights of the parties. The orders now under appeal do not finally dispose of those rights, but leave them to be determined by the Courts in the ordinary way.'

In another Privy Council decision in Abdul Rahman v. D.K. Cassim, AIR 1933 PC 58 (60) Sir George Lowndes laid down the test in the following tenns :

'The finality must be a finality in relation to the suit. If after the order the suit is still a live suit in which the rights of the parries have still to be determined, no appeal lies against it under Section l09(a) of the Code...The effect of the order from which it is here sought to appeal was not to dispose finally of the rights of the parties. It no doubt decided an important and even a vital issue in the case but it left the suit alive and provided for its trial in the ordinary way ..,.........'

11. The Full Bench of the Punjab High Court in (S) AIR 1957 Punj 173 to which a reference has already been made answered the first question in the following terms :

'A review of all these decided cases shows that in order that a decision should fall within the definition of the word 'judgment' of 'final order' (1) it must finally decide the rights of the parties and the word 'judgment' means a final judgment and not an interlocutory judgment, and by which right to the relief claimed is decided with regard to all matters in issue and (2) an order is final if it finally disposes of the rights of the parties and if it does not, it is not final even though it may decide a vital issue in the case.'

12. In an unreported case Smt. Amar Kuar v. Custodian General, Civil Misc. No. 194-C of 1955 (Punj), in which the writ petition had been dismissed by the Bench in limine an application was made for obtaining a certificate under Article 333 of the Constitution for leave to appeal to the Supreme Court. Dulat J. said:

'Mr. Nayar for the petitioner contends that the result of the dismissal of the petition was that the petitioner's right to obtain the appropriate writ from this Court was finally decided, but that does not really help because what we have to see is whether any dispute between the parties concerning their civil rights was settled by this Court, and when we view the matter in that light we find that this Court really did not decide any dispute as far as the rights of the parties were concerned.

When we dismissed the petition all we indicated was that there was no occasion for us to exercise the extraordinary jurisdiction of the High Court in this case, and quite clearly no disputed matter concerning the rights of the parties was ever decided by us. In fact it does not appear that even the order of the Deputy Custodian General which was sought to be quashed had finally determined any rights, for that order merely left the parties to have an adjudication of those' rights made by the ordinary civil Courts, but leaving that alone we are unable to say that we decided any disputed right and that being so, we cannot agree that our order dismissing the writ petition waa either a judgment or a final order within the meaning of Article 133 of the Constitution.'

13. In Shriram Hanumanbux v. State of Madhya Pradesh, (S) AIR 1955 Nag 257, Sinha C. J. said :

'Unless a decision finally disposes of the rights of the parties it is not a judgment. The mere fact thad the order impugned has decided an important and even a vital issue- is not by itself conclusive of the matter, unless the decision puts an end to the litigation. The decision or order, in order to be called a judgment, must affect the merits of the controversy between the parties by determining some right or liability.'

14. Similar view has been expressed in Smt. Inda Devi v. Board of Revenue, U. P., Allahabad, AIR 1957 All 116, West Jamuria Coal Co. v. Bholanath Roy, AIR 1954 Cal 424 (para 20 Manoharlal v. Hira Lal, AIR 1957 Madh-B 47 (para 18) and State of Madras v. C. P. Agencies, (S) AIR 1955 Nag 287.

15. In the light of the above observations our order dated 25-2-1957 in Letters Patent Appeal No. 115 of 1956 was not within the connotation of the words 'any judgment, decree or final order' occur-ring in Article 133(1) of the Constitution from which, appeal to the Supreme Court could lie.

16. In view of what has been stated above it is not necessary to consider the third point argued before us, namely, that our judgment involves directly or indirectly some claim or question respecting property of the like amount or value. Lengthy arguments were addressed on this point and our attention was drawn to conflicting views expressed by various High Courts. As this case has been disposed of on the other point it will not serve any useful purpose to determine whether the rights and claims should be worth Rs. 20,000/- or the property to which the rights and claims relate.

17. The result is that the petition fails and isdismissed with costs.


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