Article 226 | High Court Ought To Relegate Parties To Alternate Remedies When There Are Serious Factual Disputes: Supreme Court

A Division Bench of the Supreme Court, in its judgment dated October 13, 2023, opined that one of compelling reasons for relegating the writ petitioner to an alternative remedy may arise where there is a serious dispute between the parties on a question of fact and materials/evidence(s) available on record are insufficient/inconclusive to enable the Court to come to a definite conclusion.

The Court reiterated that existence of an alternative remedy is not an absolute bar on exercise of writ jurisdiction.

“More so, when a writ petition has been entertained, parties have exchanged their pleadings/ affidavits, and the matter has remained pending for long. In such a situation there must be a sincere effort to decide the matter on merits and not relegate the writ petitioner to the alternative remedy, unless there are compelling reasons for doing so.,” Justices Pamidighantam Sri Narasimha and Manoj Misra added.

In the instant case, a serious dispute had arisen regarding taking of actual possession of the surplus land. According to the State, physical possession of the surplus land was taken on March 8, 1979, after serving notice under the Ceiling Act, 1976 (Act) on the land holder on February 27, 1979. On the other hand, according to the first respondent's named Ehsan, actual possession of the surplus land was never taken from him though the State may have taken possession on paper.

While the High Court, in two occasions, refrained from deciding the contentious issue, when the respondent approached the High Court, in its third writ petition, the Court ruled that the land would not be treated as surplus land and shall continue to be in possession of the respondent.

The issue for adjudication of the Court was whether, in exercise of writ jurisdiction, the High Court should have refrained from adjudicating the contentious issue with regard to taking of actual possession of the surplus land from the landholder, when the same was not decided in the previous round of litigation even though it had arisen for consideration?

Case Background

On November 26, 1977, 5499.29 square meter of land of the first respondent named Ehsan was declared surplus by the Competent Authority under Section 8(4) of the Act.

First Round of Litigation

Challenging the aforesaid order, a writ petition was filed by the first respondent in the year 1986 which was dismissed, with liberty to raise the plea of jurisdiction before the Competent Authority. Pursuant to this, objection was taken by the first respondent before the Competent Authority however, the same was dismissed. In the order, it was observed that possession of the surplus land has already been taken.

Second Round of Litigation

Thereafter, aggrieved by the same, the order of competent authority was challenged through writ petition wherein, an ex parte interim order was passed directing that the first respondent shall not be dispossessed from the land in dispute.

It is also important to point out that the said writ petition remained pending for over a decade and was decided after the Act was repealed in 1999. Furthermore, while disposing of the said writ petition, the question of possession was left undecided. Rather, an open-ended declaration was made that if actual possession has not been taken by the date of commencement of the Repeal Act, the proceedings under the Act would abate, but if possession has been taken, they shall not abate.

Third Round of Litigation

In the year 2012 a third writ petition was filed by the first respondent claiming, inter alia, that actual possession of the surplus land was never taken; he continues to remain in possession of the land and is, therefore, entitled to a declaration that ceiling proceedings qua him stood abated by virtue of the Repeal Act, 1999.

The High Court after considering the pleadings and the materials on record ruled in the favour of first respondent. As a result, State approached the Apex Court.

Court's Observations

At the foremost, the Court observed that neither the order declaring the land as surplus, nor the notification vesting the land in the State, was set aside or declared invalid. Even the order of the Competent Authority, rejecting objection of the first respondent with regard to jurisdiction of the ceiling authorities, has not been set aside.

The Court noted that, surprisingly, the issue whether possession was taken prior to the commencement of the Repeal Act, 1999, though had arisen directly for determination in the second writ petition, was not decided. Further, the Top Court recorded that this issue was critical because rights of the parties were dependent on its determination.

Relegating Writ Petitioner To A Suit

The Court opined that one of compelling reasons for relegating the writ petitioner to an alternative remedy may arise where there is a serious dispute between the parties on a question of fact and materials/evidence(s) available on record are insufficient/inconclusive to enable the Court to come to a definite conclusion.

In this backdrop, the Court examined whether at the time of filing the third writ petition, the first respondent had an alternative remedy of a suit to seek appropriate relief for protecting his rights, if any, over the land in dispute.

Adverting to the facts of the case, the Court observed that in the instant case, the original petitioner had knowledge that 5499.20 square meter of his land was declared surplus by order dated November 26, 1977. Yet, this order was challenged through writ petition not before the year 1986.

“What happened in between is not disclosed.,” the Court added.

The Court found it intriguing that in the third writ petition there is no specific statement that recital in the order, of the Competent Authority, with regard to taking of possession is incorrect.

Addressing the submissions of the State, the Court took into consideration that, possession of the surplus land was taken in the year 1979. If it were so, even if the first respondent entered into possession anytime thereafter, may be on the strength of the ex parte interim order, the same would not defeat the right of the State.

To elucidate this, the Court relied upon Indore Development Authority v. Manoharlal, (2020) 8 SCC 129, wherein it was held that once title of the land vests in the State, consequent to acquisition and taking of possession, even if the landholder has retained possession or otherwise trespassed upon it after possession has been taken by the State, he is just a trespasser and his possession, if any, would be on behalf of the owner i.e., the State.

“In these circumstances as also that no documentary evidence was filed regarding original petitioner's possession between the years 1979 and 1987, in our view, the interim order did not carry much evidentiary value to prove that possession was not taken prior to the year 1987.,” the Court asserted.

Court's Verdict

The Supreme Court clarified that its observations are purely for the purpose of deciding whether the High Court should have entertained the writ petition or not. Hence, if any suit is instituted the same shall be decided on its own merits.

Inter-alia, the Court observed that there was a serious dispute with regard to taking of possession of the surplus land; there was a delay of about seven years in filing the first writ petition that in the earlier two rounds of litigation, the High Court refrained from deciding the issue of possession of the surplus land even though that issue had arisen directly between the parties.

In this context, the Court while allowing the appeal, held:

“….we are of the considered view that the High Court should have refrained from deciding the issue with regard to taking of actual possession of the surplus land prior to the cut-off date specified in the Repeal Act, 1999. Instead, the writ petitioner should have been relegated to a suit.”

Case Title: STATE OF U.P. & ANR v. EHSAN & ANR., CIVIL APPEAL NO.5721 OF 2023

Citation : 2023 LiveLaw (SC) 887

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