maintainability of writ petition

Supreme Court: In an appeal filed against an order of Orissa High Court wherein a record was rights which was finalised in 1958 was unsettled and directions were issued to consider the representation of the legal representatives of the deceased (‘respondents’) herein to allot a suitable plot of land in exchange of their stitiban land, the Division Bench of Abhay S. Oka and Rajesh Bindal, JJ., set aside the impugned order and allowed the appeal as there was huge delay on the part of the respondents in availing their appropriate remedy and there was concealment of material facts regarding filing and withdrawal of the civil suit claiming the same relief.

Factual Matrix

The respondents filed a writ petition on 27-6-2008 challenging the order passed by the Settlement Officer wherein records of rights were finalised. The writ petition was filed more than 18 years after the order was passed. The grievance raised was that the objections filed by the respondents during the course of settlement were not considered by the authority concerned and the land was recorded in the name of General Administration Department (‘GAD’). The appeal was disposed, and it was left open to the respondents to raise their claim with the General Administrative Department (‘GAD’). It was specifically noted in the aforesaid order that Plot No.1506 had already been given to the Reserve Bank of India for construction of staff quarters, which already stood constructed.

Thereafter, a Civil Suit was filed by the plaintiffs before the High Court wherein, firstly, a declaration of title was sought by virtue of adverse possession. Secondly, an injunction was sought against the GAD. Despite not having possession over the land already allotted to Reserve Bank of India, the plaintiffs therein in the suit claimed their possession on that portion of land. Another writ petition was filed before the High Court by the respondents, challenging the allotment of land to Reserve Bank of India; claiming allotment of land equivalent to the land given to Reserve Bank of India; for regularising illegal possession of land with the plaintiffs in exchange of land allotted to Reserve Bank of India. Single Judge order was challenged before the Division Bench of the High Court which was disposed of granting various reliefs to the respondents herein and the record of right, which was prepared way back in the year 1962, was set aside. Thus, forming the impugned order, hence the appeal.

Analysis of the Issues and Decision

The Court said that it was evident from the facts that the predecessors-in-interest, the respondents, have been sleeping over their rights for decades. The Court also said that this was a classic case in which a litigant had been able to mislead the Courts and authorities at different levels to put life into his stale claim. The record of rights was finalised way back in the year 1962. It was admitted by the respondents that a part of the same plot number, regarding which issue has been raised with reference to its allotment to the Reserve Bank of India by the GAD, was in possession of the respondents. Meaning thereby that when the record of rights was prepared, the respondents had enough knowledge of the fact that there was some error in the same. The claim was that the status of the property in possession of the respondents was stitiban property and their predecessors-in-interest were in possession thereof. It was claimed that there was no reason for its transfer in the name of the Forest Department. The Court also noted that the Division Bench of the High Court without appreciating any of the legal issues, the delay in filing the writ petition despite knowledge of the facts to the writ petitioners or their predecessors-in-interest, went on to disturb the final records of rights which were finalised way back in the year 1962 and issued directions to consider the representation of the respondents herein to allot a suitable plot of land in exchange of their stitiban land.

1. Effect of delay and laches in availing the remedies against the final publication of record of rights.

The Court referred to P.S. Sadasivaswamy v. State of T.N., (1975) 1 SCC 152, wherein it was laid down that ‘it is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time, but it should be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for the relief.”

In NDMC v. Pan Singh, (2007) 9 SCC 278, it was opined “that though there is no period of limitation provided for filing a writ petition under Article 226 of the Constitution of India, yet ordinarily a writ petition should be filed within a reasonable time.”

The Court said that on the basis of the principle of delay and laches discussed in various authorities, the Court said that it is evident that there was huge delay on the part of the respondents in availing their appropriate remedy. The record of rights was finalised in the year 1962. As admitted in the writ petition, objections were filed by the respondents or their predecessors-in-interest before that. The remedy, after publication of the final record of rights, was revision under Section 15(b) of the Orissa Survey & Settlement Act, 1958 to be filed within one year, however, no such remedy was availed of. The Court also added that nearly three decades after finalisation of the record of rights, an application was filed before the Settlement Officer, which was not maintainable after final record of rights is published. When no relief was granted by the Settlement Officer, the respondents kept quiet for 13 years before filing a civil suit in the year 2003, which was dismissed as withdrawn in the year 2007. The Court noted that then a writ petition was filed in the year 2008, which is subject matter of dispute in the present appeal. The Court said that the writ petition to claim relief was filed after 46 years of finalisation of record of rights, which was highly belated, hence, the respondents were not entitled to any relief.

2. Maintainability of writ petition when the civil suit filed for same relief was withdrawn without liberty to file fresh one and on the concealment of material facts from the Court.

The Court relied on M.J. Exporters (P) Ltd. v. Union of India, (2021) 13 SCC 543, wherein the principle of constructive res judicata was applied on a case wherein litigant was seeking to file a fresh writ petition after withdrawal of the earlier writ petition filed for the same relief without permission to file fresh one and it was held that the principles contained in Order 23, Rule 1 of the Code of Civil Procedure, 1908 (‘CPC’) are applicable even in writ proceedings. The Court viewed that on basis of application of the principles of constructive res judicata, the present writ petition filed by the respondents after withdrawal of the civil suit, was not maintainable, in the sense that it ought not to have been entertained. In case the respondents still wanted to justify filing of the writ petition, they should have at least disclosed complete facts and then justify filing of the writ petition.

The Court also said that the writ petition ought to be dismissed on the grounds of concealment of material facts regarding filing and withdrawal of the civil suit claiming the same relief. Neither in the writ petition nor in the appeal against the order passed in the writ petition, the respondents disclosed the filing of civil suit and withdrawal thereof.

3. Whether a party can rely on notings in the Government file without having communication of any order on the basis thereof?

The Court relied on Mahadeo v. Sovan Devi, 2022 SCC OnLine SC 1118, wherein it was pointed out that the inter-departmental communications are merely in the process of consideration for an appropriate decision, and they cannot be relied upon as a basis to claim any right. The Court also noted that mere notings in the file do not amount to an order unless an order is communicated to a party and thus, no right accrues.

In the matter at hand, the Court noted that no order was passed by the Government and conveyed to the respondents for allotment of any land, hence, the Court held that no relief was admissible to the respondents when only relying on the official notings.

[State of Orissa v. Laxmi Narayan Das, 2023 SCC OnLine SC 825, Decided on 12-07-2023]

*Judgment Authored by: Justice Rajesh Bindal

Know Thy Judge | Supreme Court of India: Justice Rajesh Bindal

Advocates who appeared in this case :

For the petitioner: Advocate Shibashish Misra;

For the Respondents: Advocate Chandra Bhushan Prasad.

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