Holding

The High Court did not err in refusing to restore the writ petition; consequently, the Supreme Court dismissed the appeal.

Summary

Shri Najmuddin and others filed a writ petition in 1985 challenging a 1948 notification and a 1962 offer under the Resettlement of Displaced Persons (Land Acquisition) Act, 1948, claiming a one‑third share in certain lands in Delhi. The Delhi Development Authority counter‑claimed possession based on an award. The High Court dismissed the writ petition for default in 2005 and also rejected an application to restore it, noting that the petitioners had executed a General Power of Attorney that effectively transferred their interest. The petitioners appealed to the Supreme Court, arguing that the High Court should have restored the petition and that the delay was not fatal. The Supreme Court held that a High Court may restore a dismissed writ petition under Article 226 or its inherent powers, but the parties’ conduct – especially the irrevocable power of attorney and alleged sale – was a relevant factor justifying refusal. It found no error in the High Court’s exercise of discretion and dismissed the appeal.

Issues considered

When may a High Court restore a writ petition dismissed for default under Article 226 or its inherent powers?
Is the conduct of the parties, including execution of a General Power of Attorney and alleged transfer of interest, a relevant factor to deny restoration?
Is the petition barred by laches given the long delay between the 1948/1962 notification and the 1985 filing?
Did the High Court err by considering the merits of the writ petition while entertaining the restoration application?

Legislation cited

Indian Evidence Act, 1872s. 91

Subjects

Writ petitionRestoration of dismissed petitionArticle 226Inherent powers of courtResettlement of Displaced Persons ActLachesGeneral Power of AttorneyLand acquisitionSupreme Court

Judgment

[2008] 17 S.C.R. 1260

A SHRI NAJMUDDIN & ORS.
II.
..,.__ ··"
UNION OF INDIA & ORS.
(Civil Appeal No. 7405 of 2008)
DECEMBER 18, 2008
B
[S.B. SINHA AND CYRIAC JOSEPH, JJ.]

CONSTITUTION OF /NOIA, 1950: }-
Article 226 - Restoration of a writ petition dismissed for
c default - Held: High Court may restore such writ petition in
exercise of its jurisdiction under Article 226 and/or under its
inherent powers - For the purpose of passing such order,
conduct of parties would be a relevant factor - In the instant
case, High Court cannot be said to have committed any error
..._
in refusing to exercise its discretionary jurisdiction in favour ,,....
D
of writ petitioners - Settlement of Displaced Persons (Land "'-·
...-
Acquisition) Act, 1948 - Evidence Act, 1872 - s.91.
The appellants filed a writ petition before the High
..,. '
Court in the year 1985 seeking to quash Notification No.
F1/(72)/48 LSG(lll) dated 13.1948 issued by the Union of
E
India to acquire the lands in dispute in terms of the
Resettlement of Displaced Persons (Land Acquisition)
Act, 1948 and the Offer No. 1OOOA dated 7.5.1962. It was
the case of the appellants that the lands in dispute were
recorded, amongst others, in the name of their father and
F on his death they were entitled his 1/3rd share therein.
The Delhi Development Authority filed a counter affidavit, I-
inter alia, contending that they had all along been in
possession of the lands in dispute pursuant to an award
made in the proceedings initiated in terms o'f the
G Notification of 1948. The writ petition was dismissed. ~

Durl_ng the ,p,e.ndency of the application for restoration, a \
G~neral Power of Attorney dated 24.9.1985 executed by '
the appellants in favour of one 'SS' and others, was filed ~'
indicating that the appellants under an agreement to sell
1260
H
SHRI NAJMUDDIN & ORS. v. UNION OF INDIA & ORS. 1261

had received consideration for and admitted possession A
of said 'SS' and others over the land in dispute. The
application for restoration was also dismissed. The said
order was challenged in the appeal.
Dismissing the appeal, the Court
HELD:1.1. When a writ petition is dismissed for B
default, the High Court may restore the same in exercise
of its jurisdiction under Article 226 of the Constitution of
India itself and/or in---exercise of its inherent powers. For
.\ the purpose of passing such order conduct of the parties
would be a relevant factor. [Para 13] (1268-D-E] c
1.2. The appellants filed a writ application, inter alia,
on the premise that they had no knowledge of the
purported notification dated 19.3.1948, and the offer made
by the Delhi Administration as far back as in 1962. It was
contended even before this Court that the appellants did D
not receive any amount of compensation. The appellants
do not deny of having executed a General Power of
Attorney in favour of 'SS'· and others, who were in
" possession of the property in question for a long time
and had been pursuing the writ petition before the High
Court. The very basis on which the writ petition was filed E
was appellants' purported continuous possession over
the land in question. Further, in the writ petition, no
averment was made as regards institution of a suit but,
in the list of dates, it has been mentioned that an interim
order was passed in the suit. However, from the F
impugned judgment, it transpires that the said interim
.\ order was vacated and only thereafter the suit was
withdrawn and the 'wriJ petition was filed. The record
further shows that the Arbitrator appointed under the
Rehabilitation Act had made 1a1n, award on or about G
7.5.1962 in respect of the lands in question granting \..
compensation, interest and an ex gratia amount to be
paid from the date of taking over of possession. The
appellants were, merely co-sharers. They have not stated
that there had been a partition amongst the co-sharers
H

/
1262 SUPREME COURT REPORTS [2008] 1T S.C.R.

A or they were in possession of a part of the lands
appertaining to the Khasras. [Para 13, 14 and 16] [1268-
E-G; 1269-A-D]
1.3. The High Court, therefore, cannot be said to have
committed any error in refusing to exercise its
8_ discretionary jurisdiction in favour of appellants. The
order, therefore, does not warrant any interference in
exercise of discretionary jurisdiction under Article 136 of
the Constitution of India. -[Para 17] [1270-C]
CIVIL APPELLATE JURISDICITION : Civil Appeal No. j-
c 7405 of 2008.
From the final Judgment and Order dated 25.8.2006 of the
High Court of Delhi at New Delhi in CWP No. 2068 of 1985.
Mukul Rohatgi, Sushil K. Tekriwal, Venkateswara Rao,
Anumolu, Vishnu B. Saharya (for Mis. Saharya & Co.) Krishna
D Kumar, Raj Kumar (for Praveen Swarup) Rachna Srivastava,
Sanjiv Sen and Praveen Swarup for the Appearing parties.
)
The Judgment of the Court was delivered by
5.B. SINHA, J. 1. Leave granted.
E 2. App~llant is before us aggrieved by and dissatisfied
with a judgment and order dated 25.8.2006 passed by a
Division Bench of the High Court of Judicature at Delhi in CM
No. 7244 of 2005 and Writ Petition No.2068 of 198~.
3. Appellants who are three in number filed the
F aforementioned writ petition in the year 1985 questioning the
validity and/or legality of a notification issued by the Union of
India seeking to acquire lands bearing Khasra No.186, 1_
admeasuring 3 Bigha 6 Biswas pertaining to Khewat No.50/
50, Khatoni No.100 and Khasra No.334/206 admeasuring 3
bigha 6 biswas as per Khewat No.92/96, Khatoni No.174, both
G situated at Village Begumpur, Tehsil Mehrauli, Delhi purported
to be in terms of the Resettlement of Displaced Persons (Land
Acquisition) Act, 1948 (for short, 'the Act'). Indisputably, the said
Act was enacted in the wake of partition of the country as a ~
result whereof there was a large scale migration to and from
M lndia.
SHRI NAJMUDDIN & ORS. v. UNION OF INDIA & ORS. 1263
[S.B. SINHA, J.]

Md. Sheruddin whose name was said to have been A
recorded in Jamabandi in the year 1948-1949 shifted to Meerut
in the State of Uttar Pradesh. He was declared an evacuee in
..,. --1
terms of the Administration of Evacuee Property Act in the year
1953. He prayed for restoration of the said land and allegedly
an order in his favour was passed on 28. 7 .1956 by the
B
Additional Custodian of Evacuee Property (Rural). Yet again
after the death of Md. Sheruddin which took place on 9.4.1958,
the property was declared to be an evacuee property and yet
again an order restoring the land in question in favour of the
--.\. appellants herein was passed on 10.10.1958 by the
appropriate authority accepting their claim of entitlement to the c
extent of 1/3rd share of said Md. Sheruddin.
4. Appellants contend that although a purported notification
in terms of the provisions of the said Act was issued in 1948
but they were not aware thereof. They came to know of the said
notification while some officials of the Delhi Development D
Authority (ODA) came on the said land representing that th~

•
/
,.._
""
same had been transferred in its favour and, thus, were requireq
to take possession thereof.
An application for injunction was also filed in the said suit.
Thereafter a suit was filed. An interim order was passed E
restraining the defendant from forcibly dispossessing them. The
said suit, however, was withdrawn and a writ petition was filed
praying, inter alia for the following reliefs :
"(a) quashing the notification No.F1/(72)/48-LSG(lll)
. (Annexure P-5) and the offer No.1000-A alleged to F
be made on 7 .5.1962 (Annexure P-6) in respect of
-\ the said land of the petitioner comprising of Khasra
Nos.186/2 (2 Bighas 18 Biswas) and Khasra
No.334/206 (19 Biswas) total measuring 3 bighas
17 biswas situated in the revenue estate of village G
Begum Pur, Tehsil Mehrauli, Union Territory of D~lhi.
(b) quashing the entire acquisition proceedings or any
other subsequent actions of the respondents by
calling the records of the petitioner's case.
(c) to issue a writ directions order declaring that the H
1264 SUPREME COURT REPORTS [2008] 17 S.C.R.

A notification and the offer (Annexures P-5 and P-6)
qua the petitioners' land are illegal null and void and
have no effect whatsoever.
'>-- "
(d) declaring that the action of the respondents are
invidation of fundamental, constitutional and legal
B rights guaranteed to the petitioners under Articles
14, 19, 21, 31 and 300-A of the Constitution of
India.
(e) restraining the respondents from interfering with the
petitioners peaceful occupation, possession, user, )_-
c enjoyment, right, title and interest in the aforesaid
land houses and structures standing thereon and
further directing the respondents not to interfere in
any manner in respect of the said land. /

(f) restraining the respondents from taking forcible
D possession of the aforesaid land and houses of the
petitioners standing thereon."
5. Indisputably, an ad-interim order dated 30.8.2005 was I-
passed by the High Court in terms whereof dispossession was .,
directed to remain stayed. The said ad interim order was made "
E absolute on or about 20.9.1985.
Before the High Court, the Delhi Development Authority
filed a counter affidavit, inter alia, contending that they had all
along been in possession of the lands in question pursuant to
an award made in the proceedings initiated in terms of the
F notification of 1948. It was furthermore averred :
"That Shri Najmuddin son of late Mohd. Sheruddin,
petitioner, had filed a suit against the Defendant/ i~

Respondent No.4 in the Lower Court and obtained stay
order in respect of Khasra No. 186 and 334/206 of village
G Begumpur to restrain from demolishing the plaintiff/
petitioner from the land in question unless through due
process of law. The same has been vacated on 14th
February, 1985.
'<.
That the possession of the suit land along with other land
H in this area has been handed over to the Delhi
SHRI NAJMUDDIN & ORS. v. UNION OF INDIA & ORS. 1265
[S.B. SINHA, J.]
Development Authority after removal of the engrossments. A
The petitioners are no more in possession of the land in
suit.
) -I
That the land in suit belongs to the Government of India
( (MOR) and has been transferred to the answering
--{ Respondent by the Ministry of Rehabilitation .under a B
I package deal vide Government letter No.4(19)/78/.... -
ll(Vol. ... ) dated 2.09.82 and the possession has been
handed over to the DOA by the 1\711nistry of Rehabilitation
on 09.08.85 after removal of the encroachment."
~-~
6. The said writ petition was listed for hearing in 2002.
Appellants were taking adjournments. The writ petition was
c
ultimately dismissed for default on 11.2.2005.
7. An application for restoration was filed, in support
whereof one Shri Sanjeev Singh affirmed an affidavit, stating :
"That I am the duly constituted power of attorney of D
the original petitioners, namely, Shri Najmuddin, Shri
Mohiuddin and Shri Wahabuddin, all sons of Late
......
< Mohd. Sheruddin and residents of House No.226
village - Hauzrai (Near Malviya Nagar), New Delhi
110017 and as such competent to swear this E
affidavit."
8. As an affidavit in support of the said application for
restoration was not affirmed by any of the appellants, the power
of attorney in terms whereof the said deponent claimed himself
to be entitled to affirm an affidavit on their behalf was directed F
,,,,. to be filed pursuant whereto a General Power of Attorney dated
24.9.1985 executed by appellant, wherein it was stated as
-\ unper:
"25. And we do hereby declare that by virtue of agreement
to sell executed between us and the said (1) Sh. Sanjiv G
Singh, (2) Sh. Noordesh Singh both sons of Sh. Pal singh
and (3) Smt. Pushpa Devi w/o Sh. Pal Singh all r/o house
No.A-26, Ring Road, Lajpat Nagar-IV, New Delhi 110 024,
"1" whereunder we have received a sum of Rs.1,50,000/-

-
(Rupees one lac fifty thousand only) as per receipts duly
H
1266 SUPREME COURT REPORTS (2008] 17 S.C.R.

A signed and executed by us in full and final consideration
amount of the aforesaid land, the possession of which is
. already with the said persons for the last so many years,
thus this deed of General Power of Attorney is for valuable
consideration and as such its irrevocable and shall always
remain irrevocable. We shall not cancel or withdraw the
B
powers given under this deed of General Power of Attorney,
under any circumstances whatsoever."
9. In an affidavit affirmed on 30.3.2006, the Appellant No.1
stated:
c "That my other two brothers namely i.e. Mohiuddin,
Wahabuddin are the co-owners along with me in land in
question and both of them frequently go on visits with
respect to their works i.e. Rajmistri and presently they are
at Gwalior and since I am an old man and unable to look
after the instant litigation, we had appointed Shri Sanjeev
D
Singh to look after the litigation of the instant case.
That there was an intention and likelihood to sell off the
land in question but, however, I have never sold off the land
in question in any manner whatsoever."
E 10. By reason of the impugned judgment, the application
for restoration was dismissed, holding :
(1) Appellants, having transferred their land in terms of
the said power of attorney, were in effect pursuing
a proxy litigation on behalf of some other persons.
F (2) A third party right having been created without
permission of the court, they were not entitled to any
indulgence of the Court.
(3) In view of the averments made in paragraph' 25 of
the General Power of Attorney dated 24.9.1985, it
G is evident that appellants have sold away their
interest in the property. . . . ___
(4) The averments made in the affidavit affirmed by the
appellant No.1 are by way of an afterthought and
does not clearly rule out the impact of clause 25 of
H the power of attorney.
SHRI NAJMUDDIN & ORS. v. UNION OF INDIA & ORS. 1267
[S.B. SINHA, J.]

It was furthermore held : A
"In any event, we heard the submissions of Mr. Harish
Malhotra, learned senior counsel for the petitioners. The
challenge in the writ petition is to a notification dated 7th
May, 1962 Mr. Malhotra was unable to give any satisfactory
explanation as to why the present writ petition filed on B
2.8.1985 should not be dismissed on the ground of !aches
alone. Further in the counter affidavit filed by the DOA, it
was pointed out that the petitioners had filed a suit against
the ODA in respect of the _~ame land and a stay order
-~
obtained in the said proceedings stood vacated. Following
'C
this the possession of the land in question was handed
over to the DOA. It was pointed out that the petitioner were
no longer in possession of the said land. Mr. Malhotra was
unable to explain why these facts had been suppressed
in the writ petition. He also fairly stated that no rejoinder
had been filed denying these submissions in the counter D
affidavit.
Mr. Malhotra attempted to point out.that the acquisition of
~ the land in question under Section 3 of the Resettlement
/
of Displaced Persons (Land Acquisition) Act, 1948 was~
wholly illegal because no notice as contemplated under E
Section 4 of the Act was served on the petitioners. In our
view this plea no longer is available to be urged by the
petitioners 23 years after the notification, particularly
considering the fact that the original notification was issued
on 16th September, 1948 and the impugned notification F
on 7th May, 1962. Clearly, the challenge is barred by
laches."
11. Mr. Mukul Rohtagi, learned senior counsel appearing
on behalf of the appellant, would, inter alia, contend :
(1) The High Court committed a serious error in G
passing the impugned judgment in so far as it
failed to take into consideration that the appellants
..; had been pursuing their remedies in the writ
application bona fide.
H
,c-:::
1268 SUPREME COURT REPORTS [2008] 17 S.C.R.

A (2) While considering an application for restoration of
the writ petition, the High Court should not have
considered the merit of the writ petition itself.
(3) In any event, the writ petition having not been
disposed of on merit, the same should be directed
B to be heard on merit on such terms as the court
may think fit and proper.
12. Mr. Krishna Kumar, learned counsel appearing on
behalf of Delhi Administration and Mr. Saharya,·learned counsel
appearing on behalf of DOA, on the other hand, supported the
c impugned judgment.
13. The Writ Petition was dismissed for default, as noticed
hereinbefore, by an order dated 11.2.2005. For reasons best
known to the appellants they have not filed a copy of the said
order. When a writ petition is dismissed for default, indisputably,
o · the High Court may restore the same in exercise of its
jurisdiction under Article 226 of the Constitution of India itself
and/or in exercise of its inherent power. For the purpose of
passing such order conduct of the parties would be a relevant
factor. Appellants filed a writ application, inter alia, on the
E premise that they had n6 knowledge of the purported
:::: notification issued by the Delhi Administration which was
issued as far back as in 1962.
It was contended even before us that the appellants did
not receive any amount of compensation. Appellants do not
4 F deny or dispute that the power of attorney in favour of Sanjeev
Singh and others was executed. It also stands admitted that the
same has not been revoked. The very basis on which the writ
petition was filed was their purported continuous possession 0

of the land in question. In the writ petition, no averment had
been made as regards institution of a suit but in the list of dates,
G it has been mentioned that an interim order had been passed
in the suit. However, from the impugned judgment, now it
transpires that the said interim order was vacated and only
thereafter the suit was withdrawn and the writ petition was filed.
14. It is true that in the writ petition, an interim order was
H

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I•
\

SHRI NAJMUDDIN & ORS. v. UNION OF INDIA & ORS. 1269
[S.B. SINHA, J.]
passed in their favour. A
,, -f' It, however, now transpires that an Arbitrator appointed
under the Rehabilitation Act had made an award on or ab9ut
7.5.1962 in respect of one-third share of Md. Sherruddin for Plot
No.334/206 and one-eighteenth share of Plot No.404/315, 405/
315, 402/315, 403/315, 316/227, 317/227 and 318/227 at the B
rate of Rs.322 per bigha plus interest at the rate of 4 per cent
per annum. An ex gratia amount was also directed to be paid
~_.\
from the date of taking over of possession.
Appellants were, thus, merely co-sharers. They have not
stated that there had been a partition amongst the co-sharers c
or they were in possession of a part of the lands appertaining
to the aforementioned Khasras.
15. It appears from the records that on or about 8.10.1991,
an application was filed to make the order of stay dated
·30.8.1985 absolute and allow the appellant to deal freely with D
his one-third share of the land in any manner he liked. Therein
also appellants claimed themselves to be owner in possession
,~
of the lands in question. The General Power of Attorney
executed by the appellants on 24.9.1985 evidently was an
irrevocable one. By reason thereof, all the powers of the owners
E
were delegated; clause (4) whereof reads as under:
"To submit and file all kinds of applications, petitions,
affidavits, written statements, suits, writs in any court of law
or in the High Court or in the Supreme Court or before
.... Revenue Courts in respect of the above said land and
pursue all matters, writs, suits, applications, petitions
F
,..-\
pending before any court of law or any Government office
or authority in respect of the said land."
16. Despite the same, in his affidavit filed on 13.03.2006,
appellant No.1 stated that he never intended to sell the property
G
in favour of the said Sanjeev Singh and others. If the said
constituted attorney had been in possession of the property in
question for a long time, as has been averred in paragraph 25
of the General Power of Attorney, evidently the appellant had
not been in possession thereof and consequently, the story that
H
1270 SUPREME COURT REPORTS [2008) 17 S.C.R.

A they came to know about the said notification issued in the year
1962 cannot be accepted as correct. As the constituted attorney
of appellants had been in physical possession ofthe property
and had been pursuing the writ petition before the High Court,
the averments made in the subsequent affidavits cannot be
accepted as correct. Even the said stand taken by the appellant
8
No.1 cannot be accepted in view of Section 91 of the Indian
Evidence Act.
17. The High Court, therefore, in our opinion, cannot be ;__
said to have committed any error in refusing to exercise its -
C discretionary jurisdiction in favour of appellants. The' impugned
order, therefore, does not warrant any interference by us in
exercise of our discretionary jurisdiction under Article 136 of
the Constitution of India.
18. The appeal is, therefore, dismissed with costs.
Counsel's fee assessed at Rs.50,000/-.
0
RP. Appeal dismissed.

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