Paragraph numbers below are the court’s original numbering, recovered from the source text.
50. At this stage, it is necessary to deal with one objection raised by learned Additional Solicitor General on the aforementioned statement of law laid down in Express Newspaper case (supra).
51. The objection of learned counsel for the respondent was that the view expressed by A.P. Sen J. in Paras 86-87 could at best be regarded as his own view but not the view of the Court by majority because other two learned Judges (E.S. Venkataramiah J. and R.B. Mishra J.) did not express any opinion on this question. It is for this reason the learned counsel submits that this Court should not place any reliance on the statement of law laid down in Paras 86-87.
52. We find no merit in this objection for more than one reason. We, however, consider it apposite to refer to one classic decision of the Queen’s Bench reported in 1889 (Vol. XXIV) page 117 (The Guardians of the Poor of the West Derby Union vs. The Guardians of the Poor of the Atcham Union) on this subject which was rightly relied on by the learned counsel for the appellants in answer to this question.
53. The question arose before the Queens Bench in The Guardians case (supra) as to how the Court should read a decision to find out the ratio decidendi laid down in the decision when such decision is delivered by the Bench of more than one Judge (as in that case by four Judges of the House of Lords) and especially when all the Judges have authored their individual opinions on the subject.
54. Lord Esher M.R. in his distinctive style of writing succinctly explained this question in the following words: “The question is, what is the true construction of the 35th section of the Act of Parliament which is before us, and, when we have got at the true construction, what is the application of it to this case ? ……………………………………The House of Lords heard the cases, and did not give judgment at once, but considered the matter carefully, and four of the learned judges in the House of Lords gave judgment. Now we know that each of them considers the matter separately, and they then consider the matter jointly, interchanging their judgments, so that every one of them has seen the judgments of the others. If they mean to differ in their view, they so openly when they come to deliver their judgments, and if they do not do this, it must be taken that each of them agrees with the judgments of the others. We have then four judgments. The most elaborate of these is, no doubt, that of Lord Watson; but Lord Watson’s judgment must have been read by the Lord Chancellor, and the Lord Chancellor must have discussed with Lord Watson whether he agreed with or not, and he must have agreed with it. Lord FitzGerald in terms, says, “I have read the judgment of Lord Watson, and I agree with it;” that is, he agrees not only with the result but with the mode in which the result is arrived at. Lord Macnaghten had read Lord Watson’s judgment, and he does not attempt to express the smallest difference of opinion about it; he adopts the reasoning of Lord Watson and agrees with it, but he adds another reason of his own. What is import to-day is what is the view taken by the House of Lords of the interpretation of the third part of the 35th section. It is plain that Lord Watson has taken a distinct and clear view, and has stated it clearly, of what is the effect, to a certain extent at all events, of the third clause……………………………………………………..I am clear that they decided the point which is before us: that Lord Watson’s judgment deals with it most specifically, that the judgment is really agreed with by the Lord Chancellor and by Lord FitzGerals, and by Lord Macnaghten, but that Lord Macnaghten has also given another reason for coming to the same conclusion.”
55. The other two learned Judges Lindley LJ and Lopes LJ agreed with Lord Esher M.R.
56. Keeping in view the reasoning of Lord Esher M.R., when we examine the statement of law laid down in Express Newspaper decision (supra), we are of the considered view that the reasoning of A.P. Sen J. contained in Paraa 86-87 is the law laid down on behalf of all the three Judges. It is a law by majority and is thus a law laid down by the Court under Article 141 of the Constitution. KAIKHOSROU (CHICK) KAVASJI FRAMJI v. UOI [ABHAY MANOHAR SAPRE, J.]
57. It is for the reason that first, though the lead judgment was authored by A.P. Sen J., the other two Judges concurred with the view and the reasoning of A.P. Sen J. Second, both the concurring Judges also expressed their individual views on the question on the same lines on which A.P. Sen J. expressed his view and the Third, there is no dissent inter se Lordships on any issue much less on the issue with which we are concerned in this appeal.
58. It is for these reasons, we are of the considered view that law laid down in the lead judgment in Express Newspaper (supra) is the law by three Hon’ble Judges who constituted the Bench and thus binds all the Courts in the country under Article 141 of the Constitution. It satisfies the test laid down by Lord Esher M.R. in the case of The Guardian (supra).
59. The question involved in Express Newspaper case (supra) in relation to remedy of the State qua person in possession of the land was again considered by a Bench consisted of three Judges in a case reported in State of Rajasthan vs. Padavati Devi [supra].
60. In that case also, the question arose as to whether the State Government can take recourse to a summary remedy of eviction of a person under the State Revenue Laws from the land when such person raises a bona fide dispute about his right to remain in occupation over such land. Their Lordship held that in such a situation, the summary remedy to evict such person under the Act couldn’t be resorted to.
61. Justice S.C. Agrawal speaking for the Bench held in Para 6 in the following words: “6. As noticed earlier Section 91 of the Act prescribes a summary procedure for eviction of a person who is found to be in unauthorised occupation of Government land. The said provisions cannot be invoked in a case where the person in occupation raises bona fide dispute about his right to remain in occupation over the land. Dealing with similar provisions contained in Section 6 of the Andhra Pradesh Land Encroachment Act, 1945, this Court in Govt. of A.P. v. Thummala Krishna Rao1 has laid down that the summary remedy for eviction provided by Section 6 of the said Act could be resorted to by the Government only against persons who are in unauthorised occupation of any land which is the property of the Government and if the person in occupation has a bona fide claim to litigate he could not be ejected save by the due process of law and that the summary remedy prescribed by Section 6 was not the kind of legal process which is suited to an adjudication of complicated questions of title. For the same reasons, it can be said that summary remedy available under Section 91 of the Act is not the legal process which is suited for adjudication of complicated questions of title where the person sought to be evicted as an unauthorised occupant makes a bona fide claim regarding his right to be in possession. In such a case the proper course is to have the matter adjudicated by the ordinary courts of law.”
62. This view was reiterated in the case reported in State of U.P. vs. Zia Khan [1998 (8) SCC 483].
63. At this stage we consider apposite to take note of the Constitution Bench decision of this Court wherein this Court after examining and upholding the constitutional validity of the PP Act in Kaiser- I-Hind Pvt. Ltd. vs. National Textile Corp. (Maharashtra North) Ltd. [(2002) 8 SCC 182] reiterated the view taken by this Court in an earlier decision of Northern India Caterers (P) Ltd. vs. State of Punjab (AIR 1967 SC 1581) that the PP Act does not create any new right of eviction but it only creates a remedy for a right which already exists under the general law. In other words, it was held that it only provides a remedy which is speedier than the remedy of a suit under the general law.
64. Keeping in view the statement of law laid down by this Court in cited decisions supra, when we examine the facts of the case in hand, we have no hesitation in holding that the appellants have raised a bona fide dispute on the question of ownership of the suit property qua respondent No.1 (Union of India).
65. A fortiori, in such case, respondent No. 2 has no jurisdiction to invoke the powers under section 4 of the PP Act by resorting to a summary procedure prescribed in the PP Act by sending a notice under Section 4 of the PP Act for appellant’s eviction from the suit property. This we say for the following six reasons.
66. First, the facts set out above and the documents filed in their support, in no uncertain terms, establish that there exists a bona fide KAIKHOSROU (CHICK) KAVASJI FRAMJI v. UOI [ABHAY MANOHAR SAPRE, J.] long standing dispute as to who is the owner of the suit property – the appellants or Respondent No.1 (Union of India).
67. Second, respondent No.1 itself admitted that there exists a bona fide dispute between the appellants and respondent No.1 (Union of India) over the suit property involving disputed questions of facts (see Paras 7, 8 & 18 of the Review Petition filed by Respondent No.1 in Civil Appeal Nos.608-612 against the appellants in respect of suit property in this Court).
68. Third, respondent No.1 (Union of India) itself stated in this Court in earlier round of litigation while disposing of their Civil Appeal Nos.609, 611-613, 614 and 621 of 1980 that they would seek dispossession of the appellants from the property in question in accordance with law and, if need be, by filing civil suit in the Civil Court. The respondents cannot now be permitted to go back from their statement and take recourse to a remedy of summary procedure under the PP Act, which is otherwise not available to them.
69. Fourth, this Court while granting special leave to appeal on 03.08.2009 had also granted liberty to respondent No.1 (Union of India) to file civil suit against the appellants, if they are so advised. It was, however, not resorted to.
70. Fifth, the effect of quashing the resumption notice dated 21.01.1971 issued by the respondents by the High Court vide order dated 05.02.1979/06.02.1979 in relation to the suit property was that respondent No.1 (Union of India) was not entitled to resort to any kind of summary remedy to evict the appellants from the suit property not only under the Bombay Land Requisition Act, 1948 but also under the PP Act because the PP Act also provides similar summary remedy of eviction.
71. Sixth, the Civil Court alone could try and decide the question of declaration of ownership of any immovable property between the parties and such disputes could not be decided in summary proceedings under the PP Act.
72. This takes us to examine another question raised by the respondents as to whether judgment rendered by the Bombay High Court dated 06.02.1979 stood merged in the order of this Court dated 04.08.1998. In our view, it does not merge.
73. In our view, the principle of merger is fairly well settled. For merger to operate, the superior court must go into the merits of the issues decided by the subordinate court and record finding/s one way or other on its merits. If this is not done by the superior court, a plea of merger has no application in such a case and the order of subordinate court would continue to hold the field (see Shanmugaval Nadar vs. State of Tamil Nadu [1989 (4) SCC 187].
74. In our view, this court while disposing of the appeals by its order dated 04.08.1998, did not go into the merits of the various contentions which were decided by the High Court in its order dated 06.02.1979 and disposed of the appeal on the statement made by the respondents through the Solicitor General that respondent No.1 (Union of India) would take recourse to the remedy of the civil court by filing a civil suit.
75. Indeed, in the light of such statement made by the respondents (who were appellants in the appeal), which resulted in disposal of their appeal, the respondents themselves did not call upon this Court to examine the merits of the issues raised by them in their appeals. In such a situation, there was no occasion for this Court to apply the mind to the merits much less to record any finding on any of the issues arising in the appeal. In this view of the matter, the principle of merger could not operate.
76. Now coming to another argument, the learned counsel for the respondents contended that there lies a distinction between the two types of Tribunals – one which exercises powers only when it is shown that certain state of facts exist and other which has jurisdiction to determine whether the preliminary state of facts exists as well as it has the jurisdiction to proceed further to do something more as explained in the case reported in Chaube Jagdish Prasad vs. Ganga Prasad Chaturvedi 1959 (supp) 1 SCR 733 pages 743-744.
77. It is on the basis of this submission, learned counsel contended that the Estate Officer has jurisdiction to examine the facts of this case in Section 4 proceedings under the Act.
78. We do not agree. In our opinion, once the Constitution Bench in the case of Kaiser-I Hind (supra) after examining the provisions of the PP Act has laid down the law as to how the PP Act operates and needs to be applied, all the issues arising under the PP Act has to be examined in the light of the law which deals with the PP Act.
79. The law laid down in Chaube Jagdish Prasad (supra) relied on by the learned counsel for the respondents was entirely on different KAIKHOSROU (CHICK) KAVASJI FRAMJI v. UOI [ABHAY MANOHAR SAPRE, J.] context and has no application for deciding the issue involved in this appeal.
80. Yet, last submission of the learned counsel for the respondents that the writ petition was not maintainable to challenge the notice issued under Section 4 of the PP Act has no merit and deserves rejection. Suffice it to say, firstly, the High Court having entertained the writ petition and dismissing it on merits, this objection does not survive for consideration and second, in the light of long line of decisions on this question, a writ petition to question the legality and correctness of the notice issued under any Act is no bar in entertaining the writ petition in appropriate case. The case at hand was regarded as an appropriate case for entertaining the writ petition [see – Siemens Ltd. vs. State of Maharashtra 2006 (12) SCC 33 and Whirlpool Corporation vs. Registrar of Trade Marks (1998) 8 SCC 1].
81. Before parting, we consider it apposite to mention that we have set out the facts of the case only for the purpose of appreciating and deciding the legal issue arising in the appeal namely – the validity of issuance of notice under Section 4 of the PP Act and not beyond it. We have not examined the rival claims of the parties over the property in question on merits and nor have recorded any finding on the rival claims.
82. In this view of the matter, whenever the question of ownership of the rights of the parties will be gone into by the concerned court, it shall decide the said question/s strictly on the basis of pleadings and the evidence adduced by the parties in accordance with law uninfluenced by any observations made by the High Court and this Court.
83. In the light of the foregoing discussion, the appeal succeeds and is accordingly allowed. The impugned order is set aside. As a consequence, the writ petition filed by the appellants is allowed and the notice dated 31.07.2001 issued by respondent No.2 (Annexure P-34) impugned in the writ petition is quashed by issuance of writ of certiorari. Nidhi Jain Appeal allowed.