SHRI NAJMUDDIN & ORS. versus UNION OF INDIA & ORS.

Citation: [2008] 17 S.C.R. 1260 · Decided: 18-12-2008 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Dismissed
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Judgment (excerpt)

[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: 
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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 
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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. 
E F1/(72)/48 LSG(lll) dated 13.1948 issued by the Union of 
India to acquire the lands in dispute in terms of the 
Resettlement of Displaced Persons (Land Acquisition) 
Act, 1948 and the Offer No. 1 OOOA 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. 
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Durl_ng the ,p,e.ndency of the application for restoration, a 
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G~neral Power of Attorney dated 24.9.1985 executed by 
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the appellants in favour of one 'SS' and others, was filed 
indicating that the appellants under an agreement to sell 
H 
1260 
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 
not receive any amount of compensation. The appellants 
D 
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 
E 
Court. The very basis on which the writ petition was filed 
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 
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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 
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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 
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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 AP
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