Dwarka Prasad Agarwal (D) By Lrs. And Anr vs B.D. Agarwal And Ors

Whether settlement of a private dispute between the parties to a writ

proceeding is permissible in law, is the prime question involved in these

batch of appeals which arise out of judgments and orders passed by Madhya

Pradesh High Court in M.P. No. 802 of 1992 and M.C.C. No. 477 of 1992

and the connected writ petition.

The factual matrix involved in these matters may be noticed in brief.

A partnership firm known as M/s. Dwarka Prasad Agarwal &

Brothers (The firm) was constituted with Dwarka Prasad Agarwal (since

deceased), Bishambhar Dayal Agarwal (since deceased), Mahesh Prasad

Aggarwal - all sons of Keshav Dev Agarwal and Ramesh Chandra Agarwal,

son of Dwarka Prasad Agarwal in the year 1972 as partners thereof. Each

partner contributed towards the capital of the Firm in shares to the extent of

25%, 30%, 30% and 15% respectively. Prior to the constitution of the Firm,

a newspaper known as 'Dainik Bhaskar' was being published by Dwarka

Prasad Agarwal and his name was recorded in the Registrar of Newspapers

for India (for short 'RNI'). The said Dwarka Prasad Agarwal was the karta

of a larger HUF consisting of himself and his partners. He had two wives,

namely, Kasturidevi and Kishoridevi. Allegedly, the firm transferred the

business of publication of Dainik Bhaskar at Gwalior to a newly

incorporated company, M/s. Bhaskar Publication and Allied Industries Pvt.

Ltd. of which Dwarka Prasad Agarwal was the lifetime Managing Director

and Chairman and therein Bishambhar Dayal Agarwal and his son, Ramesh

Chandra Agarwal were shareholders and directors. A printing press of

which Dwarka Prasad Agarwal was the owner is said to have been

transferred to the said company for the purpose of printing of the

aforementioned newspaper. According to the appellants, in the Annual

Reports of the RNI, the name of the said firm was shown as the owner of the

said newspaper. It is not disputed that in the year 1982, Dwarka Prasad

Agarwal suffered from a paralytic attack and was unable to attend to

business actively.

It is alleged that Ramesh Chandra Agarwal filed a Declaration on or

about 13.10.84 along with an authority letter dated 10.1.83 from Dwarka

Prasad Agarwal in respect of publication of Dainik Bhaskar at Indore for

admitting him to be the owner of the newspaper and the company as a

lessee. Certain documents were allegedly created on 13th March, 1985 by

Ramesh Chandra Agarwal for the said purpose; one of them, being an

Agreement of Sale alleged to have been entered by and between the Firm

and a company called M/s. Writers & Publishers Pvt. Ltd., the genuineness

or otherwise of which was the subject matter of a suit being suit No. 57A of

1988. Another document also came to be executed on the same day, the

genuineness whereof was also disputed, is an alleged deed of partition/

family settlement of the HUF; in terms whereof the firm's assets, several

other properties, fixed deposits, money and business including those situated

at Bombay, Delhi, Raipur, Indore, were divided between Dwarka Prasad

Agarwal, Bishambhar Dayal Agarwal, Mahesh Prasad Agarwal and Ramesh

Chandra Agarwal. According to the appellant, Dwarka Prasad Agarwal

never signed the said deed of partition/ family settlement nor was it acted

upon and in fact was questioned as forged and non-existent by Bishambhar

Dayal Agarwal in a proceeding before District Magistrate, Jabalpur and the

same was also the subject matter of suit No. 57A of 1988 pending in the

court of District Judge, Bhopal. Several other suits were filed by the parties

at several places viz. Jabalpur, Bhopal, Raipur, Gwalior, etc. Several

proceedings were also initiated before different forums with regard to

publication of the said newspapers at different places. Some writ petitions

were also filed by the parties before the High Court. Some proceedings by

way of Special Leave Application were also filed before this Court.

It may not be necessary to delve deep into the effect and purport of the

said disputes for answering the issue involved in these matters, except a few.

It may, however, be noticed that Bishambhar Dayal Agarwal,

questioning the authentication made by the Additional District Magistrate,

Jabalpur of the Declaration filed by Sudhir Agarwal, son of Ramesh

Chandra Agarwal for newspaper 'Nav Bhaskar' as regard its publication

from Jabalpur as also a purported order passed thereupon by the said

authority on 3.12.91 filed a writ petition before the Madhya Pradesh High

Court. Dwarka Prasad Agarwal was made a proforma respondent herein.

The said writ petition was marked as MP No. 802 of 1992 wherein the

following reliefs were claimed:

"(i) That the Hon'ble Court be pleased to declare

by an appropriate writ, order or direction

that the power conferred on the District

Magistrate/ Additional District Magistrate

under Section 4 and 6 of the Press and

Registration of Books Act, 1867, in case of

declarations submitted for same or similar

titles as ultra vires to the petitioner's right

under Article 14, 19(1)(a) and (g) of the

Constitution of India.

(ii) That the Hon'ble Court be further pleased to

declare by an appropriate writ that if a

power is conferred on District Magistrate/

Additional District Magistrate to grant

declaration of title of same or similar nature,

such a power cannot be exercised by the

District Magistrate/ Additional District

Magistrate till an Appellate Authority is

constituted to be able to oversee and review

the exercise of powers by the District

Magistrate/ Additional District Magistrate.

The non-provision of Appellate power

violates the petitioner's fundamental rights

under Article 14 and 19(1)(a) and (g) of the

Constitution of India.

(iii) That the Hon'ble Court be further pleased to

quash and set aside the declaration dated

11.10.1991 approved by the Additional

District Magistrate, Jabalpur, of the title Nav

Bhaskar submitted by publisher Sudhir

Agarwal as void, illegal and contrary to law.

(iii-a) The Hon'ble High Court may be pleased to

quash and set aside the declaration dated

14.2.1992 Annexure P.27 authenticated by

the Additional District Magistrate, Jabalpur

in favour of the respondent No. 1 Sudhir

Agarwal for printing and publishing

newspaper under the name and style of Nav

Bhaskar as void, illegal and non-set in law.

(iv) That the Hon'ble Court be further pleased to

set aside and quash the order dated

3.12.1991 passed by the Additional District

Magistrate, Jabalpur, on an application/

objection made by the petitioner under

Section 8-B of the Press and Registration of

Books Act, 1867 as void, illegal and

contrary to law.

(v) That the Hon'ble Court may be further

pleased to prohibit and restrain the

respondent Sudhir Agarwal and his father

Shri Ramesh Chandra Agarwal from using

the title Nav Bhaskar and to restrain the

A.D.M. Jabalpur from granting any such or

similar title to Shri Sudhir Agarwal or Shri

Ramesh Chandra Agarwal.

(vi) Any other appropriate writ, order or

direction which the Hon'ble Court deems

just and proper may also be passed in the

facts and circumstances of the case as also in

the interest of justice.

(vii) Cost of proceedings of this petition may also

be awarded in favour of the petitioner."

During pendency of the said writ proceedings, on 29.6.92 the

petitioner therein, Ramesh Chandra Agarwal son of Dwarka Prasad Agarwal

and Mahesh Prasad Agarwal along with their sons Kailash, Sudhir and

Sanjay purported to have entered into a deed of settlement. Dwarka Prasad

Agarwal admittedly was a proforma respondent therein and although his

rights as partner were directly affected thereby he was neither a party to the

said settlement nor a signatory to the said deed. The said purported

agreement was filed on the same day before the Madhya Pradesh High Court

by the petitioner therein alleging that he and the contesting respondents had

reached a full and final settlement of 'the disputes raised in the petition and

other connected matters' pending before various courts and bodies and the

writ petition be disposed of in terms of the said purported comprehensive

agreement. The said settlement was accepted and the writ petition was

disposed of in terms thereof on 29.6.1992 which was also the date of filing

of the compromise memo. The said order dated 29.6.92 is the subject matter

of Civil Appeal No. 4782 of 1996.

Pursuant to or in furtherance of the said purported compromise, RNI

altered the name of owner of title Dainik Bhaskar in his Register from the

Firm to M/s. Writers on or about 3.9.1992 stating:

"This is to state that in accordance with the notice

issued on the above subject in the matter of

ownership of Dainik Bhaskar, as per the decision

in Case No. 1182/92 dated 29.6.92 of the High

Court of Madhya Pradesh, at Jabalpur and

agreement dated 19.6.92 M/s. Writer & Publishers

Pvt. Ltd., Bhopal, has become the owner of Dainik

Bhaskar.

You are, therefore, requested that if you have any

objection to this decision then you may approach

the High Court at Jabalpur."

Dwarka Prasad Agarwal having come to learn the said order of RNI

dated 3.9.1992 filed an application for review of the order dated 29.6.1992

passed by the High Court which was marked as MCC No. 477 of 1992. The

said review petition was dismissed by an order dated 13.11.1992 and the

same is the subject matter of Civil Appeal No. 4783 of 1996.

The High Court in its order dated 13.11.92 refusing to review its

earlier order dated 3.9.92 inter alia held:

(i) The agreement in question is a lawful one.

(ii) As Dwarka Prasad Agarwal was not a signatory thereto, he was not

bound thereby.

(iii) The order recording compromise was legal as no other party

including the learned advocate of Dwarka Prasad Agarwal objected

thereto.

(iv) No writ was issued by the High Court in terms of the said order

against the Additional District Magistrate, Jabalpur or any other

authority.

Pursuant to or in furtherance of the said order dated 29.6.1992

recording the purported settlement; applications were filed in Suit No. 74A

of 1987 and 75A of 1987 in Bhopal by M/s. Writers and Ramesh Chandra

Agarwal for withdrawal thereof, whereupon the suits were dismissed.

Bishambhar Dayal Agarwal also, who had filed suit No. 57A of 1988,

moved an application to the effect that pursuant to the compromise the suit

be dismissed. This plea was also accepted.

Dwarka Prasad Agarwal filed Writ Petition No. 527 of 1993 in this

Court questioning the aforementioned order dated 3.9.92 passed by RNI

wherein inter alia the following reliefs were prayed for:

"(a)issue writ, order or direction quashing the

order dated 3rd September, 1992 whereby the

Registrar, Newspapers has changed the name of

the owner of the title Dainik Bhaskar from M/s.

D.P. Agarwal and Brothers to M/s. Writers and

Publishers Private Limited;

(b) issue writ, order or direction directing

Respondent No. 1 and 2 not to allow

Respondent No. 7 to use the title Dainik

Bhaskar for its publication;

(c) issue writ, order or direction directing the

Respondents not to publish newspaper Dainik

Bhaskar under the alleged title of Respondent

No. 7;

(d) issue writ, order or direction directing the

Respondent No. 2 to exercise its authority not

to allow Respondents No. 3 to 7 to publish

newspaper Dainik Bhaskar under the title of

writers and publishers Private Limited;

(e) issue writ, order or direction directing the

Respondent No. 8 not to allow the Respondents

No. 3 to 7 to publish newspaper Dainik Bhaskar

in contravention of the provisions of the Press

and Registration of Books Act, 1867; and

(f) pass such other and further orders as may be

deemed fit and proper in the facts and

circumstances of the case."

Dwarka Prasad Agarwal died during the pendency of these

proceedings.

Both the wives of the said Dwarka Prasad Agarwal applied for

substitution of their names in place of the deceased. The rival contentions

on substitution by the two wives of Late Dwarka Prasad Agarwal came to be

considered by this Court. Kishori Devi pressed her application. Kasturi

Devi, however, was not sure that, she, having regard to her stand taken in the

litigation, would be able to defend the action on behalf of her husband.

Upon consideration of the said question, this Court directed Kasturi Devi to

be impleaded as a respondent in the proceeding whereas Kishori Devi and

her daughters Hemlata and Anuradha were directed to be substituted in place

of Late Dwarka Prasad Agarwal. While passing the said order, however, an

observation was made that the said question shall be finally decided at the

time of hearing. We may, however notice that in the said proceedings for

substitution, Ramesh Chandra Agarwal filed a counter affidavit calling Smt.

Kishori Devi a concubine of Dwarka Prasad Agarwal. Keeping in view the

stand taken by the parties before us we have no hesitation in holding that this

Court rightly substituted Kishori Devi and her daughters Hemlata and

Anuradha in place of Late Dwarka Prasad Agarwal.

Mr. Sunil Gupta, the learned senior counsel appearing on behalf of the

appellants, as also the writ petitioner would submit that the impugned orders

passed by the High Court are ex facie bad, illegal as by reason thereof the

right title interest of Late Dwarka Prasad Agarwal, as specified hereunder,

were directly and adversely affected although he was not a party or signatory

to the said agreement.

(i) By reason of the said purported compromise, the firm was sought

to be dissolved of which Dwarka Prasad Agarwal was a partner.

(ii) The firm's assets were to be sold as per the alleged agreement

dated 13.3.85 and divided as per alleged partition deed of 13.4.85

which had not been signed and accepted by Dwarka Parsad

Agarwal, karta of HUF and the genuineness whereof was also the

subject matter of dispute.

(iii) The properties of the aforementioned firm, including the goodwill

and ownership of Dainik Bhaskar over different territories were

distributed by M/s. Writers Ltd. floated by Ramesh Chandra

Agarwal amongst the three other partners, namely, Ramesh

Chandra Agarwal, Bishambhar Dayal Agarwal and Mahesh Chand

Agarwal to the exclusion of Dwarka Prasad Agarwal, the 4th and

the remaining partner.

(iv) Although several suits, namely Suit No. 74A of 1987, 75A of

1987, 57A of 1988, 22A of 1988, 99A of 1991 and Writ Petition,

MP No. 802 of 1992 were filed by the parties, the disputes

involved therein were sought to be resolved thereby which was

impermissible in law.

The learned counsel would contend that the High Court committed a

serious error insofar as it failed to notice that Dwarka Prasad Agarwal could

not have any knowledge of the said unjust agreement, whence the same was

accepted. Although he had not instructed any lawyer to appear on his behalf

and merely one blank Vakalatnama executed by him bona fide was used

therefor and, thus, there was no question of his taking part in the proceeding

for acceptance of the purported settlement. In any event as his lawyer

admittedly recorded merely 'no instructions' in the said proceeding, the

same could not have been treated as a consent/ no objection to the recording

of the compromise on his behalf and in that view of the matter the

observations made by the High Court that the agreement was not opposed on

behalf of the parties must held to be per se unreasonable and unjustified.

Our attention, in this regard, has been drawn to various disputed

factual aspects of the matter for the purpose of showing that several mis-

representation of fact had been made in the aforementioned agreement of

settlement and the application dated 29.6.92 filed for recording the

compromise before the High Court.

The learned counsel would further contend that the compromise was,

in any event, not lawful as thereby right of ownership of an existing title in

newspaper was sought to be determined in violation of Section 19B, the

proviso appended to Section 6 and Section 8B (ii) of the Press and

Registration of Books Act, 1867 as in terms thereof the authorities were

under a statutory obligation to preserve and protect the right of the firm as

regard ownership of title Dainik Bhaskar and to prevent any person from

using the same without the authorization of the firm.

The goodwill of a firm, the learned counsel would urge, would also be

a subject matter of division of assets of partnership firm irrespective of the

fact as to whether the firm had thence been carrying on business or not.

Furthermore, as by reason of the said compromise, transfers were sought to

be made without registering the same in terms of Indian Registration Act,

the same was illegal. It was further submitted that impact of the impugned

order can be noticed from the fact that by reason of the said purported

consent order dated 29.6.92, even the RNI also found himself compelled to

forgo his statutory obligation and found itself to be bound to alter the name

of the owner of the title in the register maintained by the said authority in

terms of Section 19B of the Act from M/s D.P. Agarwal & Bros. to M/s

Writers & Publishers Pvt. Ltd. Recording of the said compromise, it was

urged, must be held to amount to practising of fraud on the court by the

parties to the agreement, as thereby they had achieved their purpose

indirectly which law prohibits them achieving directly and furthermore, as a

large number of proceedings in relation to the disputes amongst the parties

were pending before different forums, they could not have been given a go

bye by reason thereof.

The learned counsel would contend that public law remedy by way of

a writ petition could not have been taken recourse to for resolution of a

private dispute. It was submitted that in that view of the matter, the

observations of the High Court that its order did not amount to issuance of a

writ by the Court against any of the parties must be held to be illegal and

without jurisdiction.

Drawing our attention to the applications for withdrawal of the suits in

terms of the said compromise petition, the learned counsel would submit that

the order accepting the compromise was misused inasmuch as the said suits

were purported to have been withdrawn on the ground that the same was a

necessary fallout of the judgment of the High Court, which in effect and

substance, it was not.

On the writ petition filed by Late Dwarka Prasad Agarwal under

Article 32 of the Constitution of India in this Court, the learned counsel

would submit that having regard to the fact that the official respondents had

changed the entries in the register maintained under the Act is a clear pointer

to show as to how the order of the High Court was misunderstood by the

statutory authorities. It was submitted that in terms of the provisions of the

Press and Registration of Books Act, 1867, late Dwarka Prasad Agarwal

had acquired various rights coupled with the common law right as a partner

of the partnership firm which could not have been taken away only with his

consent or by operation of law. According to the learned counsel, in terms

of the provisions of the said Act, it is one thing to say that somebody is the

owner of the title in relation to the newspaper in question and it is another

thing that somebody is the printer and publisher thereof.

As regard maintainability of the writ petition, Mr. Gupta vehemently

urged that the cause of action therefor had arisen in view of illegal action on

the part of the official respondents resulting from misuse of judicial process.

He would urge that publication of a newspaper is a fundamental right in

terms of Article 19(1) of the Constitution of India and as the action of the

official respondents directly resulted in infringement of the right of the said

writ petitioners. Reliance, in this connection, has been placed on Express

Newspapers Pvt. Ltd. Vs. Union of India and Others [1986) 1 SCC 133] and

Jhumman Singh and Others Vs. Central Board of Investigation and Others

[(1995) 3 SCC 420].

Dr. A.M. Singhvi, learned senior counsel appearing on behalf of

respondent Sudhir Kumar Agarwal, on the other hand, would submit that as

by reason of the order recording the settlement entered into by and between

the parties thereto, by the High Court, the right of Dwarka Prasad Agarwal

was not affected as he was not bound thereby and further in view of the fact

that no writ was issued against the A.D.M. Jabalpur, the question of

appellants' being prejudiced by reason of the impugned order would not

arise. Drawing our attention to the order dated 13.11.1992 whereby and

whereunder the High Court refused to review its order dated 29.6.1992, the

learned counsel would contend that the correct legal position has been

clarified by the High Court, Late Dwarka Prasad Agarwal could have taken

recourse to appropriate legal proceeding to protect his own interest and, thus,

the impugned orders need not be interfered with. As regard the writ petition

filed by Shri Bishambhar Dayal Agarwal, Dr. Singhvi would contend that

from a perusal thereof it would appear that main prayer against the A.D.M.,

Jabalpur, was dependent upon the authenticity of the declaration made by

one of the respondents therein and in view of the fact that the parties had

buried their private disputes, at least prayers (3) and (4) could be granted by

the High Court, more so when prayers (1) and (2) thereof had not been

pressed.

Dr. Singhvi would urge that having regard to the provisions contained

in Section 5(5) of the said Act, the writ petition also became infructuous and,

thus, there was no occasion for the High Court to issue any writ. Referring

to certain documents, the learned counsel would argue that as prior to the

filing of the writ petition, Dwarka Prasad Agarwal had given up his own

right in the newspaper and acknowledged the right of his respondents and

the company; he had no locus standi to prefer appeals against the impugned

orders of High Court or file the writ petition. As regard the effect of the

consent order the learned counsel relied upon the decision of this Court in

Salkia Businessmen's Association and Others Vs. Howrah Municipal

Corporation and Others [(2001) 6 SCC 688].

Mr. P.P. Rao, the learned senior counsel appearing on behalf of Smt.

Kasturi Devi, inter alia, would submit that the writ petition filed before this

Court by Dwarka Prasad Agarwal (since deceased) was not maintainable.

Mr. Rao, would contend that having regard to the prayers contained in

clauses (1) and (2) thereof, there cannot be any doubt whatsoever that the

writ petition before the High Court was maintainable and only because at a

later stage the private dispute between the parties was resolved, the same by

itself would not lead to a conclusion that the writ petition ceased to be so.

Mr. Rao would submit that legality or otherwise of the said compromise

cannot be held to have been questioned by Late Dwarka Prasad Agarwal as

no illegality in relation thereto was pointed out by anybody.

Mr. Shanti Bhushan, learned Senior Counsel appearing on behalf of

Mahesh Agarwal, however, conceded that the order dated 29.6.1992 of the

High Court based on compromise must be set aside and consequently prayer

(a) in the writ petition may also be granted. However, according to the

learned counsel the petitioner is not entitled to any other relief.

Several questions of importance, as noticed hereinbefore, have arisen

for consideration in these appeals and the writ petition.

A writ petition is filed in public law remedy. The High Court while

exercising a power of judicial review is concerned with illegality,

irrationality and procedural impropriety of an order passed by the State or a

statutory authority. Remedy under Article 226 of the Constitution of India

cannot be invoked for resolution of a private law dispute as contra

distinguished from a dispute involving public law character. It is also well-

settled that a writ remedy is not available for resolution of a property or a

title dispute. Indisputably, a large number of private disputes between the

parties and in particular the question as to whether any deed of transfer was

effected in favour of M/s Writer & Publishers Pvt. Ltd. as also whether a

partition or a family settlement was arrived or not, were pending

adjudication before the Civil Courts of competent jurisdiction. The reliefs

sought for in the writ petition primarily revolved round the order of

authentication of the declaration made by one of the respondents in terms of

the provisions of the said Act. The writ petition, in the factual matrix

involved in the matter, could have been held to be maintainable only for that

purpose and no other.

An agreement recording terms of settlement between the parties on

their private dispute was executed on 29.6.1992. The application for

disposal of the writ petition in terms of the said agreement as also the order

of the High Court in M.P. No.802 of 1992 was passed on the same day. The

writ petition was not ready for hearing on the said date. Admittedly, Dwarka

Prasad Agarwal was not a signatory to the said agreement. He was also not

put on notice there-about. Assuming that he had engaged an Advocate,

keeping in view the fact that he was a proforma respondent therein, the said

learned Advocate was merely required to watch the proceedings as no relief

had been claimed against him. The question of the learned advocate of

Dwarka Prasad Agarwal not raising any objection as regard legality or

otherwise of the said agreement dated 29.6.1992 neither directly nor

indirectly arose for consideration before the High Court. He also did not

make any submission as regard the lawfulness or otherwise of the said

compromise. He merely stated that he had no instruction in the matter. In

that view of the matter, it was obligatory on the part of the High Court to

issue notice to Late Dwarka Prasad Agarwal in respect thereof or to allow

sufficient time to the learned Advocate to obtain proper and adequate

instructions.

In the aforementioned premise, the High Court was furthermore

required to apply its own mind for the purpose of arriving at a finding as to

whether it, in public law remedy, could record the compromise and dispose

of the said writ petition in terms thereof. The order dated 29.6.1992 passed

in M.P. No.280 of 1992 was purported to have been clarified by the High

Court in its order dated 13.11.1992 in the review petition being MCC No.

477 of 1977. The said order clearly demonstrates a total non-application of

mind on the part of the High Court.

Several issues of grave importance were required to be addressed by

the High Court. The High Court sought to take a short cut in holding that

the said compromise was not binding upon Dwarka Prasad Agarwal and

thereby no writ was issued. The consequence of recording of the said

compromise was tell-tale. Not only pursuant thereto or in furtherance

thereof the Registrar of Newspapers, New Delhi, passed an order dated

3.9.1992; it was construed to be a judgment of the High Court which had

been taken aid of by the respondents herein for the purpose of withdrawal of

suits wherein various disputed questions of facts and law including the

genuineness or otherwise of the agreements were in question and required

adjudication. The High Court was also required to address itself, more so

while disposing of the review application, as to whether the purported

settlement on the grounds raised by the appellants herein, was a lawful one.

Without any application of mind, the High Court proceeded to hold that the

agreement was lawful. It did not pose unto itself the right question so as to

enable himself to arrive at a finding of fact resulting in correct answer

thereto and, thus, the same would amount to a misdirection in law. While

doing so, the High Court did not take into consideration the provisions of the

Registration Act or the said Act and, in particular, Section 19B, proviso

appended to Section 6 and Section 8-B (ii) of the Press & Registration of

Books Act, 1867.

The High Court also failed and/or neglected to take into consideration

the fact that the compromise having been entered into by and between the

three out of four partners could not have been termed as settlement of all

disputes and in that view of the matter no compromise could have been

recorded by it. The effect of the order dated 29.6.1992 recording the

settlement was brought to the notice of the High Court, still it failed to

rectify the mistake committed by it. The effect of the said order was grave.

It was found to be enforceable. It was construed to be an order of the High

Court, required to be the implemented by the Courts and the statutory

authorities.

In Salkia Businessman's Association (supra), this Court observed:

"8. We have carefully considered the submissions

of the learned Senior Counsel on either side. The

learned Single Judge as well as the Division Bench

of the High Court have not only oversimplified the

matter but seem to have gone on an errand, carried

away by some need to balance hypothetical public

interest, when the real and only question to be

considered was as to whether the respondent

Authorities are bound by the orders passed by the

Court on the basis of the compromise

memorandum and whether the proposed move on

their part did not constitute flagrant violation of the

orders of the Court - very much binding on both

the parties. The High Court failed to do justice to

its own orders. If courts are not to honour and

implement their own orders, and encourage party

litigants - be they public authorities, to invent

methods of their own to short-circuit and give a

go-by to the obligations and liabilities incurred by

them under orders of the court - the rule of law

will certainly become a casualty in the process - a

costly consequence to be zealously averted by all

and at any rate by the highest courts in the States

in the country. It does not, in our view, require any

extraordinary exercise to hold that the

memorandum and terms of the compromise in this

case became part of the orders of the High Court

itself when the earlier writ petition was finally

disposed of on 13-2-1991 in the terms noticed

supra, notwithstanding that there was no verbatim

reproduction of the same in the order. The orders

passed in this regard admit of no doubt or give any

scope for controversy. While so, it is beyond one's

comprehension as to how it could have been

viewed as a matter of mere contract between the

parties and under that pretext absolve itself of the

responsibility to enforce it, except by doing

violence to the terms thereof in letter and spirit. As

long as the earlier order dated 13-2-1991 stood, it

was not permissible to go behind the same to

ascertain the substance of it or nature of

compliance when the manner, mode and place of

compliance had already been stipulated with

meticulous care and detail in the order itself. The

said decision was also not made to depend upon

any contingencies beyond the control of parties in

the earlier proceedings."

We may, however, hasten to add that we do not intend to put a seal of

our approval to those observations but only wish to point out that as to how

courts or the statutory authority may construe a consent order.

In terms of Section 141 of the Code of Civil Procedure, the provisions

thereof are not applicable in a writ proceeding. No provision of the Code of

Civil Procedure has been made applicable in terms of the rules framed by the

High Court of Judicature at Nagpur dated 25.9.1951 framed under Article

225 of the Constitution of India. In any event the applicability of the

provisions of the Code of Civil Procedure, if any, would be only with regard

to the procedural and machinery provisions contained therein but thereby no

new right could be created. Even if the provisions of Order 23, Rule 3 of the

Code of Civil Procedure and/or principles analogous thereto are held to be

applicable in a writ proceeding, the Court cannot be permitted to record a

purported compromise in a casual manner. It was suo motu required to

address itself to the issue as to whether the compromise was a lawful one

and, thus, had any jurisdiction to entertain the same. It may be true, as has

been contended by Mr. Rao, that the writ petition was maintainable at the

threshold. But once it is held that by reason of the purported settlement

between the private parties, the High Court was not required to issue any

writ, it could only either permit the petitioner to withdraw the writ petition

and dismiss the same as having become infructuous. The High Court

derives its jurisdiction in terms of Article 226 of the Constitution of India, if

an occasion arises therefor, to make judicial review of the order passed by a

statutory authority. It is beyond any cavil that no writ can be issued if the

disputes involve private law character. The writ court has also no

jurisdiction to determine an issue on private dispute over a property or right

under a partnership. While purporting to record a compromise, the writ

court cannot enlarge its jurisdiction by directing that the suits pending in

different courts filed or different causes of action would also stand

compromised. By reason thereof the writ court would be entrenching upon

the jurisdiction of the civil court indirectly which it could not do directly.

For the purpose of granting permission even for withdrawal of suit in terms

of Order 23, Rule 1 of the Code of Civil Procedure, the civil courts

themselves were required to apply their mind as to whether having regard to

the dispute between the parties, a case therefor has been made out or not.

The civil court is required to act on its own and not on the basis of any

direction of any other court determining a totally foreign issue.

Furthermore, a writ court can pass an effective order provided it has

jurisdiction in relation thereto. With the enlargement of the power of the

court recording compromise in view of the Code of Civil Procedure

(Amendment) Act, 1976, the responsibility and duty of the court also has

increased. By reason of Order 23, Rule 3 of the Code of Civil Procedure, a

party can challenge the legality of the compromise only before the same

court and in that view of the matter the court was enjoined with a solemn

duty to decide such controversy in a lawful manner. A question as to

whether a compromise is void or voidable under the Indian Contract Act or

any other law for the time being in force, would have, thus, to be determined

by the court itself. Once it is held that the agreement or the compromise was

fraudulent, the same per se would be unlawful and the court is required to

declare the same as such.

It is now well-settled that an order passed by a court without

jurisdiction is a nullity. Any order passed or action taken pursuant thereto

or in furtherance thereof would also be nullities. In the instant case, as the

High Court did not have any jurisdiction to record the compromise for the

reasons stated hereinbefore and in particular as no writ was required to be

issued having regard to the fact that public law remedy could not have been

resorted to, the impugned orders must be held to be illegal and without

jurisdiction and are liable to be set aside. All orders and actions taken

pursuant to or in furtherance thereof must also be declared wholly illegal and

without jurisdiction and consequently are liable to be set aside. They are

declared as such.

There is another aspect of the matter which must also be taken notice

of. A party cannot be made to suffer adversely either indirectly or directly

by reason of an order passed by any court of law which is not binding on

him. The very basis upon which a judicial process can be resorted to is

reasonableness and fairness in a trial. Under our Constitution as also the

International Treaties and Conventions, the right to get a fair trial is a basic

fundamental /human right. Any procedure which comes in the way of a

party in getting a fair trial would be violative of Article 14 of the

Constitution of India. Right to a fair trial by an independent and impartial

Tribunal is part of Article 6(1) of the European Convention for the

Protection of Human Rights and Fundamental Freedoms 1950 (See Clark

(Procurator Fiscal, Kirkcaldy) v Kelly [2003] 1 All ER 1106).

Furthermore, even if the Petitioner herein had filed a writ petition before the

High Court in terms of Article 226 of the Constitution of India, the same

would not have been entertained as the impugned order had been passed

consequent to and in furtherance of the purported consent order passed by

the High Court. Ordinarily, the High Court would not have issued a writ of

certiorari for quashing its own order. Even in that view of the matter too, it

is apposite that this petition under Article 32 should be entertained.

We may, however, hasten to add that as at present advised we do not

intend to enter into the contention of the petitioners that their fundamental

right under Article 19 of the Constitution of India had been infringed. This

Court would have entered into the question, if the facts were undisputed or

admitted. The question as regard infringement of fundamental right and that

too under Article 19 of the Constitution of India cannot be gone into when

the facts are disputed. Whether Dwarka Prasad Agarwal and consequently

the substituted petitioners are owners of the newspapers and if so to what

extent being disputed, it cannot be said, that by reason of the impugned order

dated 3.9.1992 passed by the first respondent herein alone, the fundamental

right of the petitioners under Article 19 had been infringed.

We are, therefore, of the opinion that the interest of justice would be

sub-served if the appeals and the writ petition are allowed and the impugned

orders dated 26.9.1992 and 13.11.1992 passed by the High Court as also the

order dated 3.9.1992 passed by the first Respondent, Registrar, Newspapers

for India, are quashed. All action taken and all orders passed by the

statutory authorites and the civil courts as referred to hereinbefore shall also

stand quashed. As a logical corollary to our order, it must also be held that

the writ petition filed by Late Bishambhar Dayal Agarwal does not servive

and must, therefore, be dismissed. The consequence of this order would be

that the parties shall be relegated to the same position in which they were

immediately prior to the passing of the order dated 26.9.1992. All parties,

statutory authorities and courts including the civil courts are directed to act

accordingly.

These appeals and writ petition are disposed of accordingly with

costs. Counsel's fee assessed at Rs.25,000/- (Rupees twenty five thousand

only).