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Kehar Singh v. Custodian-General, Evacuee Property, New Delhi And Others
Factual and Procedural Background
The petitioner, Kehar Singh, was allotted 33 standard acres and 12¼ units of land on a quasi-permanent basis in February 1950 in village Kirtowal, District Amritsar. Arjan Singh, allotted a slightly larger area, was ousted from the village by the Deputy Custodian on 6th November 1951. Arjan Singh's revision petition was rejected by the Additional Custodian in August 1952. However, the Deputy Custodian General, exercising powers under section 21 of the Administration of Evacuee Property Act, set aside this order in February 1954, directing that Kehar Singh, now the larger allottee due to an additional allotment, be ousted instead.
Kehar Singh filed a writ petition under Articles 226 and 227 of the Constitution seeking to protect his possession and quash the Deputy Custodian General’s order. The Single Judge allowed the petition, quashing the Deputy Custodian General’s order. Arjan Singh appealed to the Letters Patent Bench, which reversed the Single Judge’s order, holding that the Deputy Custodian General acted within jurisdiction and in accordance with principles of natural justice.
Kehar Singh then applied 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 Letters Patent Bench’s decision, seeking a certificate under Article 133 of the Constitution.
Legal Issues Presented
- Whether the order of the Letters Patent Bench qualifies as a "judgment, decree or final order" within the meaning of Article 133 of the Constitution, thereby permitting an appeal to the Supreme Court.
- Whether the proceedings involving the writ petition under Articles 226 and 227 of the Constitution constitute a "civil proceeding" for the purposes of Article 133.
- Whether the petitioner is entitled to a certificate under sub-clause (b) of clause 1 of Article 133 on the ground that the judgment involves a claim or question respecting property of value not less than Rs. 20,000.
Arguments of the Parties
Petitioner’s Arguments
- The petitioner sought a certificate under sub-clause (b) of clause 1 of Article 133, arguing that the Letters Patent Bench’s judgment involved a claim or question regarding property valued at not less than Rs. 20,000.
- Implicitly, the petitioner contended that the order should be considered final and appealable.
Respondent’s Arguments
- The respondent argued that the petitioner was not entitled to a certificate under sub-clause (b) of clause 1 of Article 133.
- It was contended that the order of the High Court was not a final order nor made in a civil proceeding, thereby precluding appeal under Article 133.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Collector of Monghyr v. Maharaja Partap Singh Bahadur, A.I.R 1957 Patna 102 | Held that writ proceedings under Article 226 are not "civil proceedings" within Article 133 for appeal purposes. | Court disagreed with the sweeping nature of this ruling, emphasizing that the nature of the claim determines whether the proceeding is civil, not the jurisdiction invoked. |
| Sardar Kapur Singh v. Union of India, A.I.R 1957 Punj. 173 | Considered whether orders under Article 226 are judgments or final orders and whether such proceedings are civil proceedings under Article 133. | Held that whether a proceeding is civil depends on the nature of the claim; a proceeding enforcing civil rights remains civil even if extraordinary jurisdiction is invoked. |
| Ramchand Manjimal v. Goverdhandas, A.I.R 1920 P.C 86 | Definition of a final order as one that finally disposes of the rights of the parties. | Applied to determine that the order under appeal did not finally dispose of rights, hence not a final order. |
| Abdul Rahman v. D.K Cassim, A.I.R 1933 P.C 58 | Finality in relation to suit; an order must finally dispose of rights for appeal to lie. | Confirmed that the order decided an important issue but left the suit alive, thus not final. |
| Shriram Hanumanbux v. State of Madhya Pradesh, A.I.R 1955 Nag. 257 | Only decisions that finally dispose of rights constitute judgments. | Reiterated that an order deciding an important issue is not final if it does not end litigation. |
| Shrimati Inda Devi v. Board of Revenue, U.P, A.I.R 1957 All. 116; West Jamuria Coal Co. v. Bholanath Roy, A.I.R 1954 Cal. 424; State of Madras v. C.P Agencies, A.I.R 1955 Nag. 287 | Support the principle that finality requires disposal of rights and that interlocutory orders are not appealable as final judgments. | Used to reinforce the conclusion regarding finality of the order under appeal. |
| Shrimati Amar Kaur v. Custodian General, Civil Misc. No. 194-C of 1955 (unreported) | Dismissal of writ petition does not constitute a final order deciding civil rights for purposes of Article 133. | Supported the view that no final adjudication of rights occurred in the present case. |
Court's Reasoning and Analysis
The Court examined whether the writ proceedings under Articles 226 and 227 constituted civil proceedings within the meaning of Article 133. It rejected the Patna High Court Full Bench’s broad view that such writ proceedings are not civil proceedings, emphasizing that the nature of the claim is determinative rather than the extraordinary jurisdiction invoked. Since the dispute concerned private rights over agricultural land allotment, the proceedings were civil in nature.
Next, the Court analyzed whether the Letters Patent Bench’s order was a "judgment, decree or final order." It concluded that the order was interlocutory and did not finally dispose of the parties' rights. The dispute was about the location of land allotment rather than the quantum or substantive rights, which remained to be adjudicated by appropriate authorities or courts. The Court relied on established precedents defining finality as the complete disposition of rights, noting that the order under appeal left the suit alive and did not conclusively determine the parties’ rights.
Consequently, the Court held that the Letters Patent Bench’s order did not fall within the scope of appealable orders under Article 133. The Court declined to consider the third point regarding the value of the property involved, as the petition failed on the other grounds.
Holding and Implications
The Court dismissed the petition seeking leave to appeal to the Supreme Court under Article 133.
As a result, no certificate for appeal was granted because the order appealed from was not a final order and the proceedings were deemed civil but interlocutory in nature. The direct effect is that the petitioner cannot appeal to the Supreme Court against the Letters Patent Bench’s decision. No new precedent was set beyond clarifying the applicability of Article 133 to writ proceedings and the definition of finality in orders.
Tek Chand, J.:— 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 25th February, 1957. Brief facts of this case are that the petitioner Kehar Singh was allotted 33 standard acres and 12¼ 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 8½ 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 6th November 1951. The Additional Custodian (Rural) rejected the revision petition of Arjan Singh by his order dated 6th August 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 1st February 1954 and directed that Kehar Singh was in fact the bigger of the two allottees and 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 1½ units and, therefore, in fact, he became bigger of the two allottees.
2. Kehar Singh presented a petition under Articles 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 Deputy Custodian General dated 1st February 1954, should not be given effect to. The learned Single Judge by his order dated 21st September 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 evicted 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 arguments 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. Maharaja Partap Singh Bahadur . A.I.R 1957 Patna 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 the 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 the 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 the community in contradistinction to those which are public and relate to Government. An action, which has for its object, the recovery of 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 the 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 Stroud'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 are 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 this Court in Sardar Kapur Singh v. Union of India . A.I.R 1957 Punj. 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 an order is passed can be regarded as a civil proceeding within the meaning of the said Article?
7. The second question was answered as under:—
“A review of all these authorities shows that the second question referred, whether the proceeding in which the 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 no. It will depend on the facts and circumstances of each case and keeping them 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 S. Advani(3). It covers every step in an action and is equivalent to an action Tryor v. The City Offices Company(4). It is a prescribed course of action for enforcing a legal action and embraces the requisite step by which judicial action is invoked.”
8. In this connection reference may also be made to Jagannath Agarwala v. State of Orissa . A.I.R 1957 Orissa 42., Ramayya v. State of Madras . A.I.R 1952 Madras 300., and State v. Mukhtar Singh . A.I.R 1957 Allahabad 505. (522 per Justice Beg).
9. 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 pertains to the private rights of the contestants relating to the allotment of agricultural land in village Kirtowal. The order of the Letters Patent Bench in this case was, therefore, made in “a civil proceeding.”
10. 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 cannot 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 neither 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 did 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 the 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 parties 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.
11. In Ramchand Manjimal v. Goverdhandas . A.I.R 1920 P.C 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 Salaman v. Warner(9), and that decision was followed by the same Court in the case of Bozsch v. Altricham Urban District Council(10). 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.”
12. In another Privy Council decision in Abdul Rahman v. D.K Cassim . A.I.R 1933 P.C 58 60., Sir George Lowndes laid down the test in the following terms:—
“The finality must be a finality in relation to the suit. If after the order the suit is still alive suit in which the rights of the parties have still to be determined, no appeal lies against it under section 109(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……”
13. The Full Bench of the Punjab High Court in S. Kapur Singh v. Union of India 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” or 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.”
14. In an unreported case Shrimati Amar Kaur v. Custodian General . Civil Misc. No. 194-C of 1955., in which the writ petition had been dismissed by the Bench in limine an application was made for obtaining a certificate under Article 133 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 leave 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 was either a judgment or a final order within the meaning of Article 133 of the Constitution.”
15. In Shriram Hanumanbux v. State of Madhya Pradesh . A.I.R 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 that 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.”
16. Similar view has been expressed in Shrimati Inda Devi v. Board of Revenue, U.P . A.I.R 1957 All. 116., West Jamuria Coal Co. v. Bholanath Roy . A.I.R 1954 Cal. 424 para 20., Manoharlal v. Hira Lal16, and State of Madras v. C.P Agencies . A.I.R 1955 Nag. 287..
17. In the light of the above observations our order dated 25th February 1957 in Letters Patent Appeal No. 115 of 1956 was not within the connotation of the words “any judgment, decree or final order” occurring in Article 133(1) of the Constitution from which, appeal to the Supreme Court could lie.
18. 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.
19. The result is that the petition fails and is dismissed with costs.
Petition dismissed.
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