Date of Order:
12th July 2023
Justice Abhay S. OKA
Justice Rajesh Bindal
State of Orissa & anr.
Laxmi Narayan Das (Dead)
Thr. LRs & ors.
- The order dated October 30, 2009 passed by the Orissa
- High Court in Writ Appeal No. 108/2009 is under dispute in the
- present application
- The Supreme court found respondents took an extended period before seeking legal recourse after the record of rights was published. The respondents’ writ petition was deemed unmanageable under the constructive res judicata principle, leading to acceptance of the appeal.
- Orissa Survey & Settlement Act, 1958 (for short, ‘the 1958 Act’)
- Laxmi Narayan Das filed a writ petition on 27.6.2008, challenging the Settlement Officer's order in Settlement Appeal No. 537/90. The petitioners argued that objections during settlement were not considered by the authority, and the land was recorded in the name of the General Administration Department.
- The petitioners were granted liberty to file representation, but the representation has not been decided. The counsel for the State stated that when final rights records were published, revision applications under Section 15(b) of the 1958 Act were not filed.
- The writ jurisdiction is not affected by interference. The authority observed that petitioners can represent against final record rights. The writ petition was dismissed, and an intra-court appeal was filed.
- The record of right was set aside, and the appellants were directed to represent before the High Court and exchange their land. The order has been impugned by the State.
- Effects of waiting too long and failing to take action to stop the ultimate publication of the rights record.
- The maintainability of the writ petition where the civil suit filed for the same remedy was withdrawn without the right to file a new one and due to the withholding of significant information from the court.
- Can a party rely on entries in government records without receiving notification of an order based on those entries?
ARGUMENTS ADVANCED BY THE APPELLANT
- The State’s counsel argued that the land rights were finalized in 1962, and the land was not in occupation. The appeal was filed in 1990, but the claim could not be raised with the GAD. In 2003, a civil suit was filed for declaration, claiming that 0.601 decimal of the land was in possession of the Reserve Bank of India, where staff quarters were constructed.
- The relief sought was that the respondents had become the owners by adverse possession of the land, and their possession needs to be protected. The suit was dismissed and permission was sought to file a fresh suit, but the court declined.
- The appeal against the Single Judge’s order did not mention the respondents’ civil suit and its withdrawal. The Division Bench dismissed this fact, allowing the respondents to file a civil suit or writ petition without relief. The respondents claimed the matter was pending consideration with the government, but the Civil Judge did not provide any reason for the withdrawal.
- The Division Bench observed that the withdrawal was with consent from both parties, not with the intention of allotting an alternative plot.
ARGUMENTS ADVANCED BY THE RESPONDENT
- The counsel for the respondents filed an appeal in 1990 regarding wrongful preparation of a record of rights. The appeal was dismissed on 1.3.1990, and representations were made to the GAD. However, nothing came out, leading to a civil suit.
- Official notings indicated respondents’ entitlement to land allotment in lieu of the Reserve Bank of India’s land. However, no positive result was obtained, leading respondents to file a writ petition. The Single Judge failed to consider the issue, but the High Court granted relief. Counsel for respondents argued the land is the same.
- The plaintiffs applied for permission to withdraw their suit, stating negotiations with the GAD were ongoing. However, the court denied permission to file a fresh suit. A writ petition was filed, but no mention of a civil suit was found. The case was based on an order from the Settlement Office, which was relying on the same order.
- Office notings from 2001 onwards were placed on record, and the question of whether these notings confer any rights on the respondents will be addressed in the judgment.
- The Division Bench of High Court delayed filing a writ petition, causing disturbance of final rights records from 1962. A direction was issued to consider the petitioners’ representation for land exchange.
- In New Delhi Municipal Council v. Pan Singh and others, the Court ruled that a writ petition should be filed within a reasonable time, even without a period of limitation. The court noted delay and laches as relevant factors and set aside the High Court’s order. In State of Uttaranchal and another v. Sri Shiv Charan Singh Bhandari, the Court observed that relief to stale claims can be provided.
- On the question, as to whether after the withdrawal of a suit claiming the same relief without having permission to institute fresh one for the same relief, a writ petition will be maintainable before the Court, the guidance is available from the judgment of this Court in M.J. Exporters Private Limited v. Union of India and others (2021) 13 SCC 543, wherein the principle of constructive res judicata was applied.
- In these circumstances, the court felt that when this issue was raised and abandoned in the first writ petition which was dismissed as withdrawn, the principles of constructive res judicata which are laid down under Order 23 Rule 1 of the Code of Civil Procedure, 1908, and which principles are extendable to writ proceedings as well as held by this in Sarguja Transport Service v. STAT, (1987) 1 SCC 5.
- Additionally, the Court’s decision in Municipal Committee, Barwala, District Hisar, Haryana through its Secretary/President v. Jai Narayan and Company and another, 2022 SCC OnLine SC 376, where it adopted the same stance, may be cited.
- In the current case, there is no government order that has been communicated to the respondents for the purpose of allotting any property, therefore they were not entitled to any remedy based only on the official notations.
- The respondents have taken a very long time to use their proper remedy in opposition to the final publication of the record of rights.
- The writ petition submitted by the respondents following the withdrawal of the civil suit was not maintainable under the application of the constructive res judicata concept because no liberty was given.
- If the writ petition filing was still valid, at the very least any relevant facts that were lacking had to be supplied.
- On the above observations, the appeal was hence allowed