State of Orissa vs Ram Chandra Dev and Anr

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Appeal (civil) 293-294 of 1959

Decision Date: 25 November, 1963

Coram: P.B. Gajendragadkar, A.K. Sarkar, K.N. Wanchoo, K.C.D. Gupta, N.R. Ayyangar

The Supreme Court of India, hearing an appeal numbered 293‑294 of 1959, recorded that the petitioner was the State of Orissa and the respondents were Ram Chandra Dev and another individual. The bench comprised Justices P B Gajendragadkar, A K Sarkar, K N Wanchoo, K C D Gupta and N R Ayyangar, and the judgment was delivered on 25 November 1963 and later reported in 1964 AIR (SC) 685. The central legal issue presented to the Court concerned whether the High Court of Orissa was justified in issuing a writ that directed the State not to dispossess the two respondents of lands known as “Maliahs” without obtaining their consent or without following due legal process. The matter arose because six separate petitions had been filed in the High Court by six former Zamindars of Ganjam District, each invoking Article 226 of the Constitution to seek protection against a perceived executive threat to their property situated in portions of the Ganjam Agency tracts identified as Maliahs. The petitioners described the Ganjam plains, which straddle the boundaries of Orissa and the then Andhra State, as having been permanently settled under the Madras Regulations No XXV of 1802. The Zamindaris thus settled were later acquired by the respective state governments pursuant to the provisions of the Estate Abolition Act. To the west of these plains lay hilly Agency tracts inhabited by aboriginal communities; portions of these tracts had been granted to the Zamindars by several Sanads issued by the Governor‑in‑Council of Fort St George, Madras, in the years 1874 and 1875. The lands conferred by those Sanads were termed Maliahs, and the Zamindars who received them were designated as Muthdars of the corresponding Maliahs. On 30 March 1954, the State of Orissa served notices upon the six Muthadars indicating that their rights as Muthas would be resumed with effect from that date. The petitioners contended before the High Court that they possessed a proprietary interest in the granted areas and that the State had no authority to resume the lands or to take possession of them. They further argued that the notices informed them that the State had unilaterally resumed their interests as Muthadars and that the duties and obligations imposed by the original Sanads were no longer enforceable against them. The anxiety engendered by these notices formed the basis of the petitions filed under Article 226, seeking a writ or another appropriate order restraining the State from proceeding with the contemplated action.

In the matter before the Court, the petitioners filed six separate petitions invoking the jurisdiction of the High Court under Article 226 of the Constitution of India. In each petition the petitioners contended that a writ, or any other appropriate order or direction, should be directed against the State, restraining it from carrying out the actions that had been threatened by the notices it had served upon them.

For the purpose of opposing these petitions, the State advanced the argument that the petitioners, who were the former Zamindars, possessed no proprietary interest in the lands known as Maliahs. According to the State, the Maliahs had been allotted to the former Zamindars solely by virtue of the official positions they occupied under the historic Sanads. The grants, the State explained, were intended to function as remuneration for the services performed by the Zamindars in connection with those offices. Consequently, the State maintained that the lands were held on the basis of service tenures, tenures which could be resumed at the will of the State. On this footing, the State asserted that the notices it had issued were perfectly valid and that, following the resumption of the grants, the former Zamindars were not entitled to continue in possession of the areas that had originally been allotted to them.

The core of the dispute, therefore, turned on the nature of the grant and the title that the former Zamindars claimed to have acquired by virtue of that grant. The Court noted that the law distinguishes between grants of land that are burdened with a continuing service obligation and grants of land that are made as remuneration attached to an office. In the first category, the grant is generally not resumable, whereas in the second category the land can be resumed when the office itself is abolished. The parties were thus engaged in a contest over the character of the original grants that had been made to the predecessors of the former Zamindars with respect to the lands in question.

When the petitions were argued before the High Court, the Court expressed the view that it could not decide the essential question of title within the limited framework of a writ proceeding under Article 226. The Court opined, and the present Court agrees, that a determination of title requires a properly constituted suit in which both parties would be afforded a full opportunity to adduce all material evidence relevant to the dispute. Having reached this conclusion, the High Court narrowed its inquiry to the question of whether the former Zamindars should be allowed to remain in possession of the Maliahs until such time as they might be evicted in accordance with the law, or whether they should be directed to approach a civil court to assert their rights after the Government had effected eviction by force or the threat of force.

In addressing this narrower issue, the High Court recognised that the existence of a right is the very foundation upon which its jurisdiction under Article 226 depends. The Court observed that the former Zamindars had possessed the lands for more than eighty years, a fact that, in its view, provided evidence of a right capable of sustaining their petitions under Article 226. The petitioners further urged the Court to consider Section 9 of the Specific Relief Act, which provides a speedy and summary remedy to persons in possession who have been dispossessed.

It was held that the provision of Section 9 of the Specific Relief Act, which deals with the speedy recovery of possession, does not apply when the dispossession of a person who is in possession is caused by the Central Government or any State Government, because the language of Section 9 itself clearly excludes such cases. Nevertheless, the High Court was prepared to adopt the view that the right to recover possession, which is vested in a person who had been in possession before such government‑caused dispossession and is implicit in Section 9, may be enforced under Article 226 of the Constitution even against the Central or State Government; consequently, the jurisdiction of the High Court under Article 226 was not limited in the same way that the jurisdiction of civil courts is limited by Section 9. The High Court then expressed strong disapproval of the appellant’s intention to regain possession of the lands from the ex‑Zamindars merely by reinstating the original grants without first obtaining a court order, and it consequently held that the ex‑Zamindars who had approached the court under Article 226 were entitled to an appropriate writ under that article. The appellant subsequently applied to the High Court for a certificate, and it was on the basis of the certificate issued by the High Court that the present two appeals came before this Court. Originally, six appeals numbered 293 to 298 of 1959, corresponding to six petitions filed by the ex‑Zamindars in the High Court, were brought before this Court. When the six appeals were listed for disposal on 20 March 1962, the Court was informed that the disputes in Civil Appeals 295, 296 and 298 of 1959 had been settled by compromise and that the terms of the compromise were entered into the record; as a result, those three appeals were disposed of by consent. The hearing of Civil Appeal 297 of 1959 was postponed for four weeks and the Court directed that this appeal, together with Appeals 293 and 294 of 1959, be placed for hearing thereafter, while noting that negotiations were ongoing for settlement of the three appeals. On 10 October 1962 the remaining three appeals were listed before this Court; on that date an order by consent was passed in Civil Appeal 297 of 1959, disposing of that appeal by compromise. This left Appeals 293 and 294 of 1959 pending. By consent, an order was made to stay the hearing of those two appeals for four months without prejudice to the respondents’ right to sue the appellant before a competent civil judge for the properties that are the subject of the present proceedings and to obtain appropriate reliefs, and consequently the hearing of the two appeals was adjourned.

During the hearing of the two appeals on 18 November 1963, counsel for the respondents, Mr. Tatachari, informed the Court that on 16 November 1963 the respondent in Civil Appeal No. 294 of 1959 had instituted civil suit number 86 of 1963 against the appellant before a civil court having appropriate jurisdiction. He further conveyed that negotiations were continuing with a view to settle Civil Appeal No. 293 of 1959. On the basis of these statements, Mr. Tatachari requested that the Court adjourn the hearing of the two appeals for an additional period. The Court declined the request, holding that granting further adjournment would not serve any useful purpose. It observed that the respondents had already been afforded time pursuant to the consent order issued by the Court on 10 October 1962, and that their conduct thereafter did not justify extending the time once more. Consequently, the Court proceeded to consider the merits of the appeals. Turning to the substantive issues, the Court noted that Article 226 of the Constitution confers a very wide jurisdiction on a High Court, enabling it to issue writs and appropriate orders not only for the enforcement of fundamental rights but also for other purposes. Nevertheless, the Court emphasized that the terminal words of Article 226 require that, before a writ or order can be granted in favour of a party, it must be established that the party possesses a definite right which has been either illegally invaded or threatened; the existence of such a right forms the foundation of any petition under that article. Accordingly, the narrow question the Court needed to decide was whether the respondents had demonstrated any legal right in respect of the properties from which they feared dispossession by the appellant. In addressing this question, the Court recalled that the High Court had declined to evaluate the substantive controversy between the parties, and therefore the respondents could not rely upon the contention that, by virtue of grants made to their predecessors by the State, they held a proprietary interest in the disputed properties. The Court observed that, if that contention were accepted, it would be difficult to identify any right that the respondents had actually proved to warrant the issuance of a writ. The Court further remarked that a comparable difficulty had arisen previously before it in 1952, when the Orissa High Court had issued an order in the case reported as State of Orissa v. Madan Gopal Rungta, 1952 SCR 28 : 1952 AIR(SC) 12, involving similar questions of rights and reliefs.

In the earlier period from 1941 to 1947 the Ruler of Keonjhar had granted mining leases to certain persons. After the Indian independence the Government of Orissa terminated those leases and, in 1949, issued to the former grantees temporary permits that allowed them to continue working the mines. Subsequently the Government cancelled the temporary permits and ordered the grantees to vacate the estates connected with each mine within a period of two weeks. In response to that order the grantees filed a petition under Article 226 of the Constitution before the Orissa High Court, seeking relief against the Government’s interference with their possession of the mines. The High Court entertained the petition and issued a writ of mandamus restraining the Government of Orissa from disturbing the grantees’ possession of the mines that were the subject of the cancelled permits.

The writ was intended to give the grantees a chance to commence a suit after complying with the requirement of serving notice under Section 80 of the Code of Civil Procedure. Accordingly, the High Court ordered that the Government of Orissa should not disturb the grantees’ possession until either three months had elapsed from the date of the writ or one week after the grantees had instituted the contemplated suit, whichever occurred earlier. The order further provided that the writ would cease to operate as soon as the specified condition was satisfied.

When the validity of those orders was examined, this Court observed that the High Court had acted beyond the jurisdiction conferred by Article 226. The Court held that a writ could not be issued merely to grant an interim benefit to the party who moved the petition. Interim relief, the Court explained, may be granted only as an ancillary aid to the principal relief that may be obtained after a final determination of the parties’ rights in a regular suit or in proceedings under Article 226. The Court therefore noted that the High Court had granted a writ in favour of the mining‑lease grantees without first deciding the question of title to the properties. That error was corrected by setting aside the High Court’s orders. The Court further observed that the High Court’s conduct in the present matters closely resembled the precedent set in State of Orissa v. Madan Gopal Rungta, 1952 SCR 28 : 1952 AIR (SC) 12, where a similar writ had been issued without addressing the underlying title dispute.

The Court reiterated that the High Court had not undertaken any enquiry into the title in these proceedings because such a question was appropriate for determination in an ordinary suit. Nevertheless, by issuing the writ the High Court appeared to assume that the appellant, the State, was not entitled to recover possession of the mines after the resumption of the grants. The Court expressly declined to opine on whether the grants were resumable or whether the State could reclaim possession without filing a suit. Those substantive questions were left untouched in the present appeals, with the Court limiting its discussion to the procedural impropriety of the High Court’s writ.

In this case, the Court observed that when a grant was made on conditions that rendered it resumable, the party who sought relief after the resumption was the grantee, and the State, having retained the right to resume, could lawfully attempt to recover possession of the property without initiating a suit. Nevertheless, the Court found it difficult to recognise any justification for the High Court’s issuance of a writ in the present appeals, because such a writ would inevitably leave the respondents in possession of the property until the appellant filed a suit, a result that, in the Court’s view, could not be justified unless the questions of title were finally determined and it was held that the appellant must first institute suit before the respondents could be dispossessed. The Court concluded that the High Court had failed to appreciate the legal effect of its own finding that questions of title could not be tried in writ proceedings. Once it was held that title could not be determined in such proceedings, no right could be postulated in favour of the respondents on which a writ could be issued under Article 226. Counsel for the respondents, however, contended that the right relied upon by the respondents’ petitions stemmed from their continuous possession of the properties for many years, and argued that if such a right were proved, the High Court would be justified in issuing a writ to protect that right. The Court held this argument to be plainly fallacious. Mere long‑term possession, even if extensive, does not endow the possessor with any legal right where the possession arises under a grant that is expressly resumable. Such possession may give a right to protect against third‑party interference, but between the State and the grantee, possession under a resumable grant cannot be said to confer any right that would sustain a claim for a writ under Article 226 after the grant has been resumed. In dealing with this submission, the Court assumed without deciding that a suit under Section 9 of the Specific Relief Act would be incompetent against the appellant, yet a similar relief could be claimed by the respondents against the appellant under Article 226. Even on that assumed basis, no right could be claimed by the respondents merely on the ground of possession, unless their right to remain in possession was established against the appellant, a determination that could be made only if the grant were held to be non‑resumable. Counsel for the respondents further referred to three decisions in which appropriate relief was granted to a party in possession when that possession was sought to be disturbed by executive action: Kistareddy v. Commissioner of City Police, Hyderabad, 1952 AIR (Hyd) 36; Mohinder Singh v. State of Pepsu, AIR 1955 Pepsu 60; and Mrs C N Lloyd v. District Council, United Khasi and Jaintia Hills, AIR 1960 Assam 131.

In the cases cited—City Police, Hyderabad (1952) AIR(Hyd) 36; Mohinder Singh v. State of Pepsu (1955) AIR 1955 Pepsu 60; and Mrs C N Lloyd v. District Council, United Khasi and Jaintia Hills (1960) AIR 1960 Assam 131—the High Courts examined whether a person who was admittedly in possession could be dispossessed by an executive action that had no legal basis, and they based their decisions on article 31(1) of the Constitution. The Court states that it does not intend to revisit the precise legal question considered in those decisions. However, the Court observes that, in the present matter, the respondents’ possession cannot be said to create a enforceable right against the appellant, because the property originally belonged to the appellant and had been granted by the appellant to the respondents’ predecessors, and the effect of the terms of those grants has not been fully determined. Accordingly, the Court holds that the High Court erred in issuing a writ against the appellant and in favour of the respondents in the two writ petitions that gave rise to these appeals. The appeals are therefore allowed, the orders of the High Court are set aside, and costs are awarded throughout, with one set of costs assigned.